Strengths of the Constitution's approach:
The High is given jurisdiction under S75 and S76 to interpret wording of the Constitution. As part of structural protection, this allows the High Court the ability to rule and determine whether legislation made by parliament has infringed upon our rights. In making their decision, the High court can declare the legislation invalid and thus safeguard our rights as seen in Roach.
Another strength is the existence a bicameral structure of parliament. As another aspect of structural protection, a bicameral structure of parliament assists to indirectly protect our rights. This is because all bills passed must be reviewed by the Upper House acting as a house of review. If bills are made that can infringe our rights, it will not be voted to pass.
Another strength is that within the Constitution there exists five express rights. Some of these rights include acquisition of properties on just terms (compensating owners if the Cmth were to take their land) and freedom of religion whereby the Cmth cannot require or ban the practice of any religion. As these rights are explicitly written and as such entrenched, they cannot be changed unless a successful referendum occurs. This lengthy and difficult process ensures these rights are protected.
Another strength of express rights is that they act as a limitation on Commonwealth law making powers. Unlike other countries, there are no limits or ability to override our express rights. This means that Commonwealth parliament cannot introduce any legislation that infringes these rights.
Lastly a strength of implied rights allows the High court to ensure that the Constitution remains relevant and updated. The ability to apply and infer meanings for the wording of the Constitution means that our democratic and human rights don't remain stagnant and are allowed the flexibility to adapt to changing values of society.
Despite these strengths there are also a few weaknesses:
Despite being able to interpret the Constitution, for a case to reach the High court can be very timely and costly. If a test case regarding the infringement of our rights do not reach the High court, as a structure that exists to indirectly protect our rights, the High court has limited power.
Another weakness is that despite having the ability to limit law making powers of the Constitution, the High court has very restricted means of prevent states from infringing people's rights. This is because the Constitution only prevents or restricts law making powers of that of Commonwealth parliament, not of states.
Another weakness is that there are only five express rights featured within the Constitution. Unlike other countries that possesses a bill of rights (either entrenched or statutory), our five rights are very limited and at the time of their conception were focused on political and civil rights. As such, we rely on the High court and legislation to safeguard
our rights.
Another weakness concerning express rights is the fact that they are entrenched. Like other wordings of the Constitution, in order to add more express rights into our Constitution requires a successful referendum which are very rarely successful. This can mean that our approach to protecting rights can become hindered and restrictive.
Lastly another weakness of our approach to human rights is the ability for the High Court to imply rights. This ability can be seen as a dangerous power as we are allowing the High Court o infer meanings from those that have written the Constitution. If High Court interpretations are too flexible it may lead to injustice to both that of the individuals and Commwealth.
The High is given jurisdiction under S75 and S76 to interpret wording of the Constitution. As part of structural protection, this allows the High Court the ability to rule and determine whether legislation made by parliament has infringed upon our rights. In making their decision, the High court can declare the legislation invalid and thus safeguard our rights as seen in Roach.
Another strength is the existence a bicameral structure of parliament. As another aspect of structural protection, a bicameral structure of parliament assists to indirectly protect our rights. This is because all bills passed must be reviewed by the Upper House acting as a house of review. If bills are made that can infringe our rights, it will not be voted to pass.
Another strength is that within the Constitution there exists five express rights. Some of these rights include acquisition of properties on just terms (compensating owners if the Cmth were to take their land) and freedom of religion whereby the Cmth cannot require or ban the practice of any religion. As these rights are explicitly written and as such entrenched, they cannot be changed unless a successful referendum occurs. This lengthy and difficult process ensures these rights are protected.
Another strength of express rights is that they act as a limitation on Commonwealth law making powers. Unlike other countries, there are no limits or ability to override our express rights. This means that Commonwealth parliament cannot introduce any legislation that infringes these rights.
Lastly a strength of implied rights allows the High court to ensure that the Constitution remains relevant and updated. The ability to apply and infer meanings for the wording of the Constitution means that our democratic and human rights don't remain stagnant and are allowed the flexibility to adapt to changing values of society.
Despite these strengths there are also a few weaknesses:
Despite being able to interpret the Constitution, for a case to reach the High court can be very timely and costly. If a test case regarding the infringement of our rights do not reach the High court, as a structure that exists to indirectly protect our rights, the High court has limited power.
Another weakness is that despite having the ability to limit law making powers of the Constitution, the High court has very restricted means of prevent states from infringing people's rights. This is because the Constitution only prevents or restricts law making powers of that of Commonwealth parliament, not of states.
Another weakness is that there are only five express rights featured within the Constitution. Unlike other countries that possesses a bill of rights (either entrenched or statutory), our five rights are very limited and at the time of their conception were focused on political and civil rights. As such, we rely on the High court and legislation to safeguard
our rights.
Another weakness concerning express rights is the fact that they are entrenched. Like other wordings of the Constitution, in order to add more express rights into our Constitution requires a successful referendum which are very rarely successful. This can mean that our approach to protecting rights can become hindered and restrictive.
Lastly another weakness of our approach to human rights is the ability for the High Court to imply rights. This ability can be seen as a dangerous power as we are allowing the High Court o infer meanings from those that have written the Constitution. If High Court interpretations are too flexible it may lead to injustice to both that of the individuals and Commwealth.