Unit 4 AoS 2 Revision
DP 8 THE MEANS BY WHICH THE
COMMONWEALTH CONSTITUTION PROTECTS
RIGHTS, INCLUDING STRUCTURAL
PROTECTION, EXPRESS RIGHTS AND
IMPLIED RIGHTS
General advice
 The focus of this topic is on how rights are protected in
Australia by the Constitution, and how rights are
protected by Canada. You may be asked to explain a
protected right (see question 1) or discuss all
rights (see question 2). Alternatively, questions could
focus on the approach used to protect rights in Australia
and an evaluation of those means. When undertaking a
comparison, the emphasis is on the approach used
to protect rights rather then the rights
themselves that are being protected. Note that
questions on the topic could be combined with other
questions in this AoS: division of powers, changing the
Constitution.
Question 1
 Identify and describe one right protected by the
Commonwealth Constitution 2 marks.
Answer
 Any of the express rights in the Constitution:
 Acquisition of property on just terms (s 51 (xxxi).
 Trial by jury (s. 80)
 Freedom of religion (s. 116)
Question
 Explain how the Constitution provides for ‘structural
protection’ of rights.
Structural protection
 Within the Constitution there are a number of
sections that give protection of rights to Australians.
Whilst some are expressly protected, other rights are
protected indirectly by the structures set up by the
Constitution and act as a guard against a misuse of
power by the Commonwealth Parliament. These
structures such as representative government,
responsible government and the separation of
powers operate to form a structural protection of
rights.
Answer
See handout.
Question 2
 Distinguish between express rights and implied
rights in the Commonwealth Constitution and give
an example of each. 4 marks.
Answer
 Express rights are those rights whose protection is written
into the Constitution – the rights are actually stated in the
Constitution. For example: S. 116 guarantees freedom of
religion by states that the Commonwealth cannot make laws
to establish, impose or prohibit any religion. Implied rights
are those rights not written in the actual wording of the
Constitution but where the High Court has interpreted the
Constitution and decided that these rights were intended to be
protected by the Constitution. For example, freedom of
political communication is an implied right (as developed by
the Nationwide News Pty. Ltd vs Wills and Australian Capital
Television Pty found that in the system of representative
government stated in the Constitution implied that it was
necessary to discuss political information and opinions,
protecting the right to freedom of political communication).
Question
 Describe the structures and mechanisms that exist
within the Constitution that help to protect the rights
of Australians. 6 marks.
Answer
 There are a number of structures or mechanisms
within the Constitution that operate to indirectly
protect rights by preventing a misuse of power by the
Federal Parliament. First, s. 7 and 24 provide for a
parliament that is chosen directly by the people.
These sections help to ensure that we have a
government comprising members who will represent
the views, values and needs of their electorate and
uphold their rights otherwise they may be voted out
at the next election.
Answer continued
 Next, the principle of responsible government ensures
that the government can only rule if it has the support or
confidence of the parliament. If it loses the confidence of
the parliament government must resign. Responsible
government protects people from being ruled by a
government that does not have the support of the lower
house. The doctrine of separation of powers, which states
that three powers of Commonwealth should be held by
different bodies ensures that no one body has absolute
control. Each of the arms of government: the legislature,
judiciary and the executive acts as a check on the actions
of the other arms, which helps prevent the abuse of
power.
Question
 Evaluate the means by which the rights of
Australians are protected by the Commonwealth
Constitution.
Answer
 See the attached handout.
Questions
 Define the following terms:
 Express rights
 Implied rights
 Structural protection
Answer
 Express rights: those rights that are expressly written
within the wording of the constitution. Eg….
 Implied rights: those rights that are not explicitly stated
in the Constitution but have been found by the High
Court in interpreting the Constitution to have been
intended to protect the Constitution. Eg:
 Structural protection: Systems or mechanisms in the
Commonwealth Constitution that indirectly protect
human rights by preventing the misuse of power such as
the separation of powers or representative government.
An example of structural protection is the limited right to
vote in Roach v. Electoral Commissioner (2007).
Can you…
 Demonstrate an understanding of rights and rights
protection?
 Explain the types of rights protected by the
Commonwealth Constitution?
 The approaches used to protect rights in the Comm
Constitution: structural protection, express rights
and implied rights?