Dear Readers,
Here is the fourth question:
Is the Commonwealth Constitution an ”ineffective mechanism for protecting human and democratic rights”. Justify your answer. (6 marks 2009 – Q9b)
Quick comment:
In hindsight the answer is perhaps a bit long for a 6 marker. As normally I would be aiming for a page or a little over to get the question done and answered within 10ish minutes. Given i fit roughtly 200-250 words on a page it could certainly be slimmed down a touch.
Answer:
The commonwealth constitution is largely an ineffective mechanism for protecting human and democratic rights as it is limited to the 5 express rights, including S116 freedom of religion, which are scattered throughout the document. Australia is the only English speaking common law country that does not have an entrenched bill of rights.
However it does provides a comprehensive legal framework which enables rights to be effectively protected in legislation and common law. The Bi-cameral structure of Parliament provides a great deal of protection for our rights as the Senate acts as a house of review, providing checks and balances (largely in the committee stage where a legal and constitutional committee can be established to determine if any of the clauses are unconstitutional) in order to prevent any legislation being passed that limits our rights. However in the situation where the government controls both houses the upper house becomes a rubber stamp and does not provide the necessary checks and balances as was seen by the Howard governments Work Choices Legislation in 2005.
In addition under S73-5 the High Court was established in order to provide an independent perspective and interpret the wording of the constitution to determine if it is considered ‘ultra vires’. This was demonstrated by the rejection of the Malaysia solution in 2011 as it was deemed unconstitutional.
Furthermore, under S128 of the commonwealth constitution a referendum can be undertaken to alter the wording of the constitution. Via a direct vote, a double majority must be achieved in order for it to be successful. However, they are largely ineffective as the process to achieve a double majority is very rigid and the Australian people are typically sceptical of change.
Overall the Australian Constitution is largely ineffective as a method to protect our democratic and human rights as in comparison to countries like South Africa whose constitution includes an entrenched bill of rights, our constitution is limited to the protection of 5 express rights.
Yours,
JB