'Mark my Response' Thread

[playsimme]

I think your high court case needs to be rechecked. The right to vote is not an implied right - and the case relates to structural protection meaning the constitution protecting representative government being s.7 and 24 by stating government must be chosen directly by the people. Hence that legislation infringed on those sections - meaning representative government protected the ability to vote, declaring the legislation invalid.
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Also can someone confirm?:
I don't really learn the specific constitutional numbers.. so if I were to answer the 'why would the high court have heard this case' question by simply stating

The high court would of heard this as it is the guardian of the constitution - the constitution outlines it is the only court which can interpret and hear matters regarding the constitution.

would that be right?

[bodriagin]

In giving reasons for his decision in Roach v. Electoral Commissioner [2007] HCA 43, Justice Gleeson confirmed that the Constitution under sections 7 and 24 did establish that senators and members of the House of Representatives be 'directly chosen by the people'. These sections according to Gleeson, have come to 'be a constitutional protection of the right to vote'.

I'm not arguing that the right to vote is an implied right but is it wrong to use this case as an example?

If it is wrong, what is another good case to use in this question?

Also in response to your question: it is only a 1 mark question and the study design does not require you to know specific section numbers (except for 109 and 128 I believe) so I don't see why it wouldn't be correct.

[playsimme]

No it wouldn't be wrong but you'd have to relate structural protection to the case, as it is a structural case. If you really wanted to use implied rights go for the political broadcasting case (commonwealth v australian capital television) as it was the first case to highlight the implied right of freedom for speech regarding political matters
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thanks, I got quite nervous for a second.. I'd hate to have to learn all the numbers again

[Zafaraaaa]

Sorry to bump up this thread! But could someone please skim over my extended response? Thanks so much!

-Also, for this Q, I was a bit confused about what stance to take, so I'm essentially saying that Parliament > courts in law making...is there a better approach I could take?
"Parliament is more effective than courts when it comes to making laws. Therefore, law-making should  be left to Parliament only and the courts should focus on resolving disputes, not making laws"

Discuss the statement above, indicating the extent to which you agree or disagree. In your answer, include a critical evaluation of the law making processes of Parliament and courts.

As the supreme and sovereign law-making body, Parliament is more well-suited to making laws than the courts, who only have a secondary and often ineffective role in law making.

Firstly, Parliament can make laws at any time as the need arises or in response to changes in society which may require prompt and urgent changes in the law. E.g. when there were concerns about the monitoring of released sex offenders after release, Parliament was able to quickly pass the Serious Sex Offenders Monitoring Amendment 2009 (Vic.) to allow a lower standard than the courts had interpreted for the monitoring of these offenders. Due to the urgent need of such legislation to protect society, the bill was passed through both houses of Parliament within just 3 days. On the other hand, courts must wait for an appropriate test case to come before them, before they can legislate. This is often time consuming as potential litigants are mostly hesitant to bring forth their case to court, due to high costs and delays. Thus, the court is somewhat limited and restricted in their law-making as unlike Parliament, courts cannot make laws at any time.

Also, Parliament has various resources and tools, such as Parliamentary committees and formal law reform bodies such as the Victorian Law Reform Commission, to assist the Parliament in undertaking complete investigations to enable more effective changes in the law that reflect the changing views and values of society. However, Courts only have their own resources at their disposal when attempting to make laws and cannot access law reform bodies to assist them in changing the law. Thus, changes in the law through courts also may not represent the wider views and values of the community.

In addition, Parliament is a more effective law-maker as it legislates "in futuro" (with future circumstances in mind). Parliament is able to foresee a potential problem which may arise in the future, and they can legislate to counter the problem. Unlike Parliament however, courts can only ever make laws "ex post facto" (after the fact), meaning that the court can only legislate after the problem or dispute has taken place - and it cannot legislate to prevent future problems from arising.

Furthermore, Parliament is more efficient in law making as members of Parliament are elected by the people - this means that elected members will have a responsibility towards their electorate and will create laws which are reflective of the common values and views of thee community. Conversely, judges in courts are appointed, not elected, meaning  that law which develops through the courts may not be totally reflective of the wider values held by the community. Also, many groups in society, such as migrants, Indigenous people, and women feel as though their views are under-represented in courts.

Finally, law-making through Parliament is subject to extreme scrutiny and review as bills must be passed through both the lower and upper house, which would act as the 'House of review' and analyse and make amends to errors in the bill. This would help to ensure that any potential flaws in the bill are addressed and  rectified and that the eventual legislation is suitable for the society which it is to serve. On the other hand, courts do not have such rigorous checks and scrutiny for common law, and so it is possible that judges may make flawed laws that may ultimately be ineffective and cause future problems in terms of interpretation and application to future cases.

Ultimately, although the courts do have a secondary role as law-makers, Parliament's supremacy and sovereignty in law-making through its greater access to law-making resources, better representation of societal values, ability to legislate for future circumstances, and its capacity to legislate at any time in response to society's needs, undoubtedly enables it to create more efficient and effective laws for society and thus allows it to be a more effective law-maker than the courts.

[smithy16]

'The Commonwealth Constitution uses three main methods to protect human rights' Explain this statement. Referring to an example of a case involving the protection of rights, evaluate how effectively rights are protected in Australia.

My Response:

In its approach to the protection of rights, the Commonwealth Constitution uses three main methods. It protects rights through structural protections, express rights and implied rights.

Structural protections of rights are systems and mechanisms established by the Constitution, which indirectly protect the rights of Australian citizens. Although they do not provide an express guarantee of rights, they establish a system of checks and balances which protect rights. An example of a structural protection of rights is the principal of representative government. This structure protects rights, as if parliament is not acting in a way that is representative of the general will of the people, they can be voted out and replaced by someone who will.

Express rights are those that are written into the Commonwealth Constitution and are considered to be entrenched as the only process to remove them is to alter the Constitution through the referendum process. There are only five express rights in the Commonwealth Constitution, including the right to freedom of religion (s.116), the right to trial by jury for Commonwealth indictable offences (s.80), the right to not be discriminated against (s.117), the right to receive just terms if the government acquires ones property (s51xxxi) and freedom of trade (s.99). However some of these rights are quite limited, such as the right to trial by jury; which only applies to Commonwealth indictable offences. This is limited as most indictable offences are listed under state law.

Implied rights are those which have been found by the High Court to be implied in the wording of the Constitution; and to this date, only one implied right has been found - the right to political communication. This right was found in the case ABC v. Commonwealth and allows political communication, as in order for representative government to be effective, voters must be informed, which can only occur through the communication of political ideas.

Although the Constitution does not contain an extensive list of express rights, the five rights it does contain are well protected - with the only way to remove them being through a referendum. Also through structural protections, such as the High Court - implied rights can be found, and other rights can be protected. For example, in the Vicki Roach Case, the right to vote was protected, as the High Court found that parliament could not arbitrarily exclude a whole class of persons from voting.

Overall, despite the Commonwealth Constitution not containing an extensive list of rights - the rights that it does contain are strongly protected. Through the combination of express rights, implied rights and structural protections - the Constitution is quite effective in it approach to the protection of rights.

Thankyou!

[Wazzup]

'The Commonwealth Constitution uses three main methods to protect human rights' Explain this statement. Referring to an example of a case involving the protection of rights, evaluate how effectively rights are protected in Australia.

My Response:

In its approach to the protection of rights, the Commonwealth Constitution uses three main methods. It protects rights through structural protections, express rights and implied rights.

Structural protections of rights are systems and mechanisms established by the Constitution, which indirectly protect the rights of Australian citizens. Although they do not provide an express guarantee of rights, they establish a system of checks and balances which protect rights. An example of a structural protection of rights is the principal of representative government. This structure protects rights, as if parliament is not acting in a way that is representative of the general will of the people, they can be voted out and replaced by someone who will.

Express rights are those that are written into the Commonwealth Constitution and are considered to be entrenched as the only process to remove them is to alter the Constitution through the referendum process. There are only five express rights in the Commonwealth Constitution, including the right to freedom of religion (s.116), the right to trial by jury for Commonwealth indictable offences (s.80), the right to not be discriminated against (s.117), the right to receive just terms if the government acquires ones property (s51xxxi) and freedom of trade (s.99). However some of these rights are quite limited, such as the right to trial by jury; which only applies to Commonwealth indictable offences. This is limited as most indictable offences are listed under state law.

Implied rights are those which have been found by the High Court to be implied in the wording of the Constitution; and to this date, only one implied right has been found - the right to political communication. This right was found in the case ABC v. Commonwealth and allows political communication, as in order for representative government to be effective, voters must be informed, which can only occur through the communication of political ideas.

Although the Constitution does not contain an extensive list of express rights, the five rights it does contain are well protected - with the only way to remove them being through a referendum. Also through structural protections, such as the High Court - implied rights can be found, and other rights can be protected. For example, in the Vicki Roach Case, the right to vote was protected, as the High Court found that parliament could not arbitrarily exclude a whole class of persons from voting.

Overall, despite the Commonwealth Constitution not containing an extensive list of rights - the rights that it does contain are strongly protected. Through the combination of express rights, implied rights and structural protections - the Constitution is quite effective in it approach to the protection of rights.

Thankyou!

Section 92 not 99 hopefully it was a typo other than that looks good, well done

provides that ‘trade, commerce and intercourse among the states … shall be absolutely free.’

[smithy16]

Yeah just a little mistake. Thanks.

[cltf]

'The Commonwealth Constitution uses three main methods to protect human rights' Explain this statement. Referring to an example of a case involving the protection of rights, evaluate how effectively rights are protected in Australia.

My Response:

In its approach to the protection of rights, the Commonwealth Constitution uses three main methods. It protects rights through structural protections, express rights and implied rights.

Structural protections of rights are systems and mechanisms established by the Constitution, which indirectly protect the rights of Australian citizens. Although they do not provide an express guarantee of rights, they establish a system of checks and balances which protect rights. An example of a structural protection of rights is the principal of representative government. This structure protects rights, as if parliament is not acting in a way that is representative of the general will of the people, they can be voted out and replaced by someone who will.

Express rights are those that are written into the Commonwealth Constitution and are considered to be entrenched as the only process to remove them is to alter the Constitution through the referendum process. There are only five express rights in the Commonwealth Constitution, including the right to freedom of religion (s.116), the right to trial by jury for Commonwealth indictable offences (s.80), the right to not be discriminated against (s.117), the right to receive just terms if the government acquires ones property (s51xxxi) and freedom of trade (s.99). However some of these rights are quite limited, such as the right to trial by jury; which only applies to Commonwealth indictable offences. This is limited as most indictable offences are listed under state law.

Implied rights are those which have been found by the High Court to be implied in the wording of the Constitution; and to this date, only one implied right has been found - the right to political communication. This right was found in the case ABC v. Commonwealth and allows political communication, as in order for representative government to be effective, voters must be informed, which can only occur through the communication of political ideas.

Although the Constitution does not contain an extensive list of express rights, the five rights it does contain are well protected - with the only way to remove them being through a referendum. Also through structural protections, such as the High Court - implied rights can be found, and other rights can be protected. For example, in the Vicki Roach Case, the right to vote was protected, as the High Court found that parliament could not arbitrarily exclude a whole class of persons from voting.

Overall, despite the Commonwealth Constitution not containing an extensive list of rights - the rights that it does contain are strongly protected. Through the combination of express rights, implied rights and structural protections - the Constitution is quite effective in it approach to the protection of rights.

Thankyou!

Section 92 not 99 hopefully it was a typo other than that looks good, well done

provides that ‘trade, commerce and intercourse among the states … shall be absolutely free.’

Is this a ten mark question? If so I would add and focus on HOW statutory rights are protected by structural protection, express rights via referendum (not necessary to list all 5 rights, it won't get you anymore marks than saying there are 5 and giving one example) and implied rights via high court.
And just for interest sake, I personally would evaluate so also highlight a weakness in each protection. But this really comes down to how many marks this question is, the afore mention parts above really only apply if its a 10 mark question.

[smithy16]

Yeah it was a 10 mark question. So do you reckon that instead of having the paragraph at the end evaluating the approach by the Commonwealth, i could just discuss a strength and a weakness at the end of each of my paragraphs about the different methods used? And i'm not sure what you mean about statutory rights.