Weaknesses of structural protections

[izzykose]

In case we have to talk about the Australian constitutional approach to the protection of rights id like to be able to talk about structural protections.

Strengths- These structural protections work to protect rights indirectly by providing structures which provide a system of checks and balances in order to guard against the potential abuse of power. Therefore these structures are entrenched into the Commonwealth Constitution and cannot be changed without the introduction of a referendum proposal. Example--> Separation of Powers, or Representative Government -->Roach Case (constitutional right to vote protected by the structures of representative government). Therefore these structures can be interpreted by the High Court to grant further rights and thus provides an effective system of indirectly protecting rights which cannot be easily changed.

Weaknesses- Nothing...? If i used the Separation of Powers example i could talk about how there is some overlap between the executive and legislative bodies and thus true separation does not exist. Thus not adequatly protecting Australians from the misuse of power by government. .... But what other weaknesses of structural protections could i discuss?

Any help would be sweet. Cheers.

[smithy16]

You could argue that a weakness of structural protections is that they do not provide an express guarantee of rights. Or even with the structural protection of the bi-cameral system; if government holds the majority in both the house of reps and the senate, it can pass laws without great review. Therefore it would not necessarily protect rights.

[izzykose]

Thanks.

[cltf]

You would argue that structural protections mainly relate to statutory rights, and at the end of the day parliament can easily legislate to remove some statutory rights and nothing can stop them doing so at that point.

[Tragesty]

A bit more minor than the above points, but you could mention that there is overlap in the separation of powers (one part of structural protection), as the governor general is part of both legislative and executive powers.