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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 within a legal framework that safeguard certain rights without being explicitly stated as rights. In Australia, this protection arises from the architecture of the Constitution itself, which establishes a framework for governance that indirectly supports the protection of individual rights.
For instance, the separation of powers among the legislative, executive, and judicial branches serves to protect rights by preventing any one branch from becoming too powerful. Additionally, the representative nature of the Australian Parliament ensures that citizens have a voice in governance, thereby promoting democratic values.
Step 2
Describe two other means by which the Commonwealth Constitution protects rights in Australia.
Answer
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Express Rights: These are rights that are specifically enumerated within the Constitution. For example, Section 116 provides for freedom of religion by prohibiting the Commonwealth from establishing a religion or imposing religious observance. This clear articulation of rights helps protect individuals against governmental overreach.
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Implied Rights: These are rights that are not explicitly written in the Constitution but have been recognized through judicial interpretation. An example is the implied right to freedom of political communication, which has been developed through High Court decisions. This principle ensures that citizens can freely discuss and criticize government actions, thus supporting democratic engagement.