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'The structural protection of rights in Australia is one of the means by which the Commonwealth Constitution protects rights.' a - VCE - SSCE Legal Studies - Question 6 - 2011 - Paper 1
Question 6
'The structural protection of rights in Australia is one of the means by which the Commonwealth Constitution protects rights.' a. Explain the term 'structural prote... show full transcript
Worked Solution & Example Answer:'The structural protection of rights in Australia is one of the means by which the Commonwealth Constitution protects rights.' a - VCE - SSCE Legal Studies - Question 6 - 2011 - Paper 1
Step 1
Explain the term 'structural protection'.
Answer
Structural protection refers to the mechanisms embedded within the Constitution that safeguard certain rights by the design of governmental structure and operations. Unlike express rights, which are clearly defined in the text of the Constitution, structural protections are implied rights that arise from the way the government is organized.
For example, the separation of powers among the legislative, executive, and judicial branches ensures that no single branch can overstep its powers, thereby protecting individual rights such as freedom of expression and the right to a fair trial. These protections create a framework within which rights are preserved, ensuring that the government operates within its boundaries and respects the rights of individuals.
Step 2
Describe two other means by which the Commonwealth Constitution protects rights in Australia.
Answer
One means is through express rights, which are specifically stated in the Constitution. These rights can only be altered through a formal amendment process. For instance, Section 116 outlines the freedom of religion, ensuring that the Commonwealth cannot impose laws that establish a religion or restrict the free exercise of any religion.
Another means is through implied rights. These rights are not explicitly stated in the Constitution but have been recognized by the High Court through interpretation. An example is the implied right to freedom of political communication, which enables citizens to discuss political matters and criticize the government, thus playing a vital role in a democratic society.