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Evaluate the extent to which the Commonwealth Constitution protects the rights of Australians through implied rights. - VCE - SSCE Legal Studies - Question 10 - 2016 - Paper 1
Question 10
Evaluate the extent to which the Commonwealth Constitution protects the rights of Australians through implied rights.
Worked Solution & Example Answer:Evaluate the extent to which the Commonwealth Constitution protects the rights of Australians through implied rights. - VCE - SSCE Legal Studies - Question 10 - 2016 - Paper 1
Step 1
Explain implied rights and their basis
Answer
Implied rights are those rights not explicitly enumerated in the Constitution but are inferred through its structure and legal principles. In the context of the Commonwealth Constitution, these rights primarily derive from the interpretation by the High Court, which has established that certain political and democratic principles are crucial for its functioning. This includes the freedom of political communication, although the extent and limits of this freedom are subject to judicial interpretation.
Step 2
Discuss specific implied rights
Answer
One of the significant implied rights is the freedom of political communication, which the High Court has recognized as a fundamental aspect of the relationship between the government and its citizens. This right is necessary for the exercise of a valid electoral process. It stems from the need for the public to be informed about political matters, allowing citizens to participate fully in democracy.
Step 3
Evaluate the effectiveness of protection
Answer
While the implied rights provide some level of protection, their effectiveness is limited by several factors. For example, the High Court's decisions, such as in the case of Lange v Australian Broadcasting Corporation, have indicated that the right is not absolute and must be weighed against other interests, such as regulation of media and public order.
Step 4
Analyze limitations and criticisms
Answer
Critically, the lack of a comprehensive bill of rights in Australia means that implied rights are subject to the interpretations and limitations set by the High Court. Factors such as the cost of litigation and the standing required to challenge governmental actions can hinder individuals' ability to assert these rights. Moreover, the implied rights only cover specific issues related to political communication and do not extend broadly to other areas of personal rights.
Step 5
Conclusion
Answer
In conclusion, while the implied rights within the Commonwealth Constitution do provide some level of protection for Australians, particularly in terms of political communication, this protection is not comprehensive. It is constrained by judicial interpretation and practical limitations, leading to an ongoing debate about the adequacy of rights protection in Australia.