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'The Commonwealth Constitution is too rigid and this makes it an ineffective mechanism for protecting human and democratic rights.' a - VCE - SSCE Legal Studies - Question 9 - 2009 - Paper 1
Question 9
'The Commonwealth Constitution is too rigid and this makes it an ineffective mechanism for protecting human and democratic rights.' a. Evaluate the process of cha... show full transcript
Worked Solution & Example Answer:'The Commonwealth Constitution is too rigid and this makes it an ineffective mechanism for protecting human and democratic rights.' a - VCE - SSCE Legal Studies - Question 9 - 2009 - Paper 1
Step 1
Evaluate the process of changing the Constitution as outlined in Section 128.
Answer
Section 128 outlines a rigorous process for changing the Australian Constitution, which is characterized as both a strength and a weakness.
Strengths of the Process
- Scrutiny of Proposals: The process avoids unclear proposals and ensures that only valid changes are put forward for referendum.
- Representation of Public Opinion: The approach mandates that a majority of voters in both the states and territories must approve any alteration, promoting comprehensive public engagement and representation.
- Compulsory Voting: The requirement for compulsory voting reflects a more accurate representation of community views, as it involves a broader demographic in decision-making.
- Majority Approval: The necessity of providing a double majority ensures that changes reflect the will of a significant portion of the populace.
Weaknesses of the Process
- Cost: The process can be expensive, as seen in the 1999 referendum, which incurred significant costs.
- Lengthy and Complicated: The extended time required to bring proposals to a vote can lead to disinterest or disengagement among the electorate.
- Distrust in Political Process: There may be a growing distrust among voters regarding the political elites who often propose changes, which can hinder active participation.
In summary, while Section 128 ensures rigorous evaluation and public engagement in constitutional changes, its complexities and associated costs can impede effective reform.
Step 2
Is the Commonwealth Constitution an 'ineffective mechanism for protecting human and democratic rights'? Justify your answer.
Answer
The effectiveness of the Commonwealth Constitution in protecting human and democratic rights can be viewed from multiple angles.
Strengths
- Limited Rights Removal: The Constitution allows for express rights that can only be removed by constitutional amendment, making significant alterations challenging.
- High Court's Role: The High Court possesses significant authority to interpret these rights and can invalidate legislation that contradicts constitutional protections, ensuring ongoing safeguarding of rights.
- Ongoing Legislative Protections: While the Constitution provides a framework, individual rights are reinforced by legislation, allowing for adaptability to changing societal values.
Weaknesses
- Limited Express Rights: The Constitution enumerates few express rights compared to other legal systems, restricting the scope of protected rights.
- Political Processes: Changes to rights often require political will, which can be sporadic and influenced by prevailing political climates, risking stagnation in the advancement of rights.
In conclusion, the Commonwealth Constitution has mechanisms for protecting rights, but the rigid structure and limited express provisions leave room for debate regarding its overall effectiveness in ensuring comprehensive protections for human rights.