Unit 3 AOS 2 – Question 5

Dear Readers,

Here is the fifth question:

Compare Australia’s approach to the consitutional protection of democratic and human rights with the approach adopted in one of the countries listed above. In your answer, evaluate how effective the Commonwealth of Australia’s Constitution is in protecting democratic and human rights.

Quick comment:

If I remember correctly, this is an early version of the essay I have for sale.

Answer:

Australia’s approach to the constitutional protection of right shares a number of similarities but also a great many differences to the approach of South Africa. Australia is the only English speaking common law country that does not have an entrenched Bill of Rights.

The nature, extent and source of the protected rights differ greatly between the two nations. The Commonwealth Constitution is limited to the protection of only 5 express rights which are scattered throughout the constitution. Largely rights are protected through legislation (eg. Discrimination Act 1991), common law and treaties (ICCPR). In contrast, South Africa has an entrenched Bill of Rights which covers a broad range of social, democratic, human, legal and economic rights that are found in Chapter 2 S7-39 of the South African constitution.

The function of the legislative branch also differs considerably between the two nations. In Australia the upper house or house of review acts to provide the necessary checks and balances to ensure that legislation does not infringe upon our rights. During the committee stage a legal and constitutional committee can be established which investigates and determines if any of the clauses are unconstitutional. This process proves effective when the government does not control both house. However in the situation where it does, the upper house becomes a rubber stamp and the necessary checks and balances are not provided. This was demonstrated in 2005 by the Howard governments Work Choices legislation which was red stamped in the upper house. In contrast under S79, the President of South Africa can return legislation back to the national congress if it is deemed to be unconstitutional, furthermore under S36 the constitution allows for a limitation of certain rights if it is “demonstrably justified”. The limitation must be done based upon proportionality as was demonstrated in the Prince Case 2002, when the court said no in order to protect that country from the use of drugs. Furthermore, the national congress must create laws in the “spirit” of the Bill of Rights.

Both nations have an independent court designed to protect constitutional rights. In Australia the High Court established under S73-5 interprets the wording of the constitution and following the Political Broadcasting case 1992 established the implied right of freedom of communication on political matters inorder to uphold the principle of representative government. However as demonstrated by the Langer Case in 1996 the High Court can limit the implied right. Furthermore in Australia, the parties must have a standing in the case. In comparison, in South Africa the parties do not require a standing. Any court can determine that a piece of legislation is unconstitutional but only the Constitutional Court can declare it invalid. As was demonstrated in the Treatment Action Campaign in 2002. In both countries the purpose of the judicial branch is to ensure that the legislative branch fulfils its constitutional obligations.

Both nations have a structural protection allowing for the alteration of the wording of the constitutions. In Australia S128 provides the people with a direct vote, then if a double majority is successful the wording is altered. This is demonstrated in 1967 when the referendum was passed to increase the rights of aboriginals. However, only 8/44 have been successful as the process is extremely rigid and the Australian people are typically sceptical of change. This trend is demonstrated in the failure of the 1988 referendum to include a mini-Bill of Rights in the Australian Constitution. In contrast in South Africa under S74, there is a representative vote, and if 2/3 of the National congress and 6/9 of the provinces agree the referendum is successful.

Yours,
JB

Unit 3 AOS 2 – Question 4

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

Unit 3 AOS 2 – Question 3

Dear Readers,

Here is the fourth question:

Explain two ways in which South Africas constitutional protection of democratic and human rights is similar to or different from the approach provided by the Commonwealth Constitution. (4 marks 2008 – Q5)

Answer:

South Africa’s approach to the constitution protection of its citizen’s rights differs greatly from Australia’s. South Africa has an entrenched bill of rights found in chapter 2 S7-39 that provides protection for a broad range of democratic and human rights. In contrast, the Australian constitution is limited to 5 express rights including S116 freedom to practice or not practice a religion. For example, the South African constitution provides protection against discrimination based on age, race, gender, religion and sexual practice whereas Australia’s constitution only protects from discrimination as a result of state residence (S117).

However, there are also a number of similarities, both nations have a structural protection that allows for the alteration of the wording of the constitution in Australia S128 Referendum provides citizens with a direct vote and a double majority must be achieved in order for it to be successful. Although the process is largely ineffective as only 8/44 have passed including the 1967 referendum to increase the rights of Aboriginal people. Referenda are limited as they can be rejected, as the process is so rigid and the people can be sceptical of the change, this is demonstrated by the failed 1988 referendum to entrench a bill of rights in the Australian constitution. Likewise, under S74, South Africa utilises a representative vote to alter the constitution, requiring 2/3 of the national congress and 6/9 of the provinces to be successful.

Yours,
JB

Unit 3 AOS 2 – Question 2

Dear Readers,

Here is the second question:

The approach adopted for the constitutional protection of democratic and human rights can differ between countries. Compare Australia’s approach to one other country. (Q8b – 2006 )

Answer:

Australia is the only English speaking common law country that does not have an entrenched bill of rights. The Australian Constitution is limited as it provides protection only for the 5 express rights that are scattered throughout the constitution, in Australia rights are protected largely by other means including legislation (eg. Discrimination Act 1991) and treaties (eg. ICCPR). In contrast, South Africa has an entrench bill of rights that was created in the post apartheid era. A broad range of social, democratic, cultural and human rights are found in Chapter 2 S7-39.

Furthermore, the Australian constitution provides a method to alter the wording of the constitution. S128 (Referendum) provides the people with a direct vote, in order for it to be successful a double majority is required. As a result of the rigidity of the process and the sceptical nature of the Australian people the process is largely ineffective with only 8/44 having passed. For example a 1988 referendum to entrench a bill of rights was rejected. In comparison, under S74, South Africa utilises a representative vote to alter the constitution, requiring 2/3 of the national congress and 6/9 of the provinces to be successful.

Yours,
JB

Unit 3 AOS 2 – Question 1

Dear Legal Studies Students,

I thought I would start with the lower markers and work my way up.

Here is the first question:

Explain how one democratic or human right is protected by the Commonwealth Constitution. (Q8a – 2006 )

Answer: The Commonwealth Constitution provides S116 for freedom to practice (or not practice) a religion. As well as prohibiting the establishment of a state religion or the imposition of a religious test for Commonwealth office.

Thanks,
JB

Unit 3 AOS 2 – Constitution and the Protection of rights.

Dear Legal Studies Students,

Over the coming fortnight I will be posting 5 questions relating to the topic. A wide variety of marks and styles of question. Essentially the information remains the same between them but it is presented in a way that is fitting for the “action” verbs of the question.

I hope they are useful to you all in your studies.

For your reference, these answers we completed by me prior to my sac the same time last year. The answers have all been run past a teacher and have been given either full marks or close too.

Please do not take my word as gospel, nor should you rote learn these answers. They are in response to a variety of questions from past papers. Also, I did South Africa as my country of comparison. Even if you are doing another country, the structure should still be applicable.

These are a guide that I hope will give you some insight into the topic and the structure of your answers.

I hope this will help in your studies.

Thanks,
JB