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AOS 2: The Constitution and the Protection of Rights
BOOKLET NINE
* The means by which the Commonwealth Constitution protects rights including structural protection, express rights and
implied rights;
* The significance of one High Court case relating to the constitutional protection of rights in Australia (Roach case)
JO pages 133 to 151
The ways in which the Commonwealth Constitution protects rights, including structural protection,
express rights and implied rights.
Rights
Define what is meant by the term ‘a right’. Provide an example. Why do we have rights in Australia?
Explain the ways in which Australia protects individual rights?
Define the term ‘express right’, provide an example.
What is a Bill of Rights? Does Australia have a Bill of Rights?
There are three main ‘rights’: express rights, statutory (…………) rights and rights protected by
legislation.
Complete the below table, explaining the different approaches that counties take to protect rights.
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Rights
How are they protects?
Country/state that uses this
approach
What type of enforcement of rights do you think are used in Australia?
Australia’s Constitutional Protection of Rights
Explain the ways in which rights are protected in Australia.
Are some rights protected in the Commonwealth Constitution? If so, explain these rights.
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Structural protection of rights
What is meant by the term ‘structural protection of rights’. Explain the ways in which the Commonwealth
Constitution provide for this? Use an example.
Explain the term ‘separation of powers’.
In what ways does the structural protection of rights evident in the separation of powers?
What is meant by the term ‘responsible government?’
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What does the principle of responsible government have to do with structural protection of rights?
What is meant by the term ‘representative government?’ How does representative government protect
people’s rights?
How is S53 of the Constitution relevant to the constitutional principle of responsible government? How
does responsible government protect rights?
How does representative government protect rights?
What constitutional protection does the Crown offer?
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To what extent does the Constitution provide structural protection of rights?
The significance of one High Court case relating to the constitutional protection of rights
Read the case study ‘Vicki Lee Roach’ (The Roach Case). Roach v. Australian Electoral Commissioner
(2007)
YOU NEED TO BE ABLE TO EXPLAIN THE SIGNIFICANCE OF THIS HIGH COURT CASE ON THE
CONSTITUTIONAL PROTECTION OF RIGHTS IN AUSTRALIA.
Why did Vicki Lee Roach have standing in this case? (How was the case relevant to her?)
Explain the reason for the High Court finding that the 2006 act was unconstitutional and the 2004 act
was valid.
How was this case relevant to the system of representative government in Australia and the protection
of rights.
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Express rights in the Commonwealth Constitution
Define the term ‘express rights’.
Identify the five express rights listed in the Constitution, provide an example of a case for each.
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Is freedom of religion an express right? Explain and use an example in your answer.
Implied rights in the Commonwealth Constitution
In what ways are rights implied in the Constitution?
Is the right to political communication an implied right? Use an example to support your answer.
Complete the table below.
Case
Nationwide News Pty
How it is relevant to
protection of
constitutional rights
What right is being
examined
The outcome of the
case
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Ltd v. Wills (1992)
Cole v. Whitfield (1988)
R. v. Loubie (1985)
Telstra Corporation
Limited v. The
Commonwealth (2008)
Brown v. R (1986)
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Lange v. Australian
Broadcasting
Corporation
How can the express rights that are entrenched in the Constitution be changed?
To what extent are our express rights and implied rights protected?
Rights protected through acts of parliament or common law
Explain the two ways in which the majority of rights in Australia are protected. Use examples.
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Evaluation of the protection of rights of Australians by the Commonwealth Constitution
Strengths
Weaknesses
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Evaluate the means by which the rights of Australian are protected by the Commonwealth Constitution,
and the extent of that protection. (8 marks) (2009) CLASSIC EXAM QUESTION – PRACTICE! YOU
MUST USE AN EXAMPLE.
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Explain the importance of S7 and S24 of the Constitution to these dot points.
In what ways does the knowledge in this booklet link to other parts of the Legal Studies course. Draw a
mind map to show the connections.
Key words: STRUCTURE, FRAMEWORK, MECHANISM, CHECKS AND BALANCES, ABUSE OF
POWER.
MUST HAVE EXAMPLES OF IMPLIED RIGHTS, EXPRESS RIGHTS, STRUCTURAL PROTECTION
Key examples: Roach case