Hey guys, I was wondering if anybody would be able to give me an indication of what this answer would be awarded out of 10 marks? It's really hard trying to mark your own work, because you can't tell if you genuinely deserved a mark or if you're just biased haha. I'm happy to try and return the favour!
Question 13 of the 2012 VCAA exam: ‘Rights in Australia are well protected by the Commonwealth Constitution, in part because of section 128 of the Constitution.’ Discuss the extent to which you agree or disagree with the above statement. In your answer, explain the significance of one High Court case that you studied related to the constitutional protection of rights in Australia. (10 marks)
"I partially agree with the statement. While it is true that the referendum process outlined in S128 helps preserve the rights, the narrow scope of rights protected brings into question whether rights as a whole are “well protected” by the Constitution.
Section 128, the referendum process, requires that a change in the Constitution fulfills many requirements. It must first be approved by both houses of parliament (or one house twice after three months), then it must be approved by the people. A majority of Australians who may vote and a majority of people in a majority of states must agree to the change before the Constitution may be altered. This makes rights well protected as if they are at risk of being taken, it is unlikely the double majority provision will be met as the people would not agree.
However, the Constitution is limited in the number of rights it protects. There are only 5 express rights, such as the freedom of religion (S116), that the constitution protects. It also contains one implied right – a right that is not expressly written in the Constitution, but is believed to have been intended by the writers at the time of federation. Therefore, while these 6 rights are unlikely to change and therefore are well protected, other rights that are not included in the Constitution are not well protected, making the Constitution lacking protection of rights overall.
Furthermore, the tedious process of S128 of changing the Constitution also makes it difficult to add rights to be protected, which is another set back of using it to protect rights.
However, while S128 may not be entirely beneficial, the High Court can serve to protect indirect rights in the decisions it makes on cases it sees before them. The right of representative government was protected in Vicky Lee Roach v The Electoral Commissioner (2007). The ‘Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006’ prevented all convicted and sentenced prisoners from voting in a federal election. Roach, who was serving a 6 year sentence at the time, argued that this legislation was unconstitutional as it went against the idea of representative government (S7 and S24 of the Constitution). The High Court removed the restriction on all prisoners, but the restriction on prisoners serving 3+ years remained. Overall, it protected the right of representative government.
This case represents that the High Court is able to protect rights that are laid out in the Constitution by declaring legislation in conflict with the rights unconstitutional, and therefore invalid.
Ultimately, S128 of the Constitution protects the rights laid out within the Constitution well – however, there are only few rights it can protect. The High Court is also capable of protecting Constitutional rights as it makes decisions on certain cases, declaring conflicting legislation invalid. Therefore, I only partially agree with the statement."
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