Evaluate Australia’s Constitutional Protection of Rights

aaalex wooten
An evaluation of Australia’s Constitutional protection of rights is a possible question for the next SAC or your final examination when we look at the study design.. Last year in the final examination the Rights question was based on a comparison of the Australian system with the approach adopted by another of the selected countries in the study design (South Africa is my preference here).

Your studies need to be comprehensive in this section. You should become an expert in this area of the law. Why?
As an expert you will be able to answer any question posed by the examiner or your teacher when an assessment task is given. You will have an opinion! If there is one thing we like in the law it is opinions.

Australia’s Constitutional protection of rights is failing the people of our nation today. Whilst it has served its purpose well over the last 113 years since its inception in 1901, the structure of the document leaves a lot to be desired. I will evaluate our Constitution and compare it with that of South Africa which was enacted far more recently than ours.

Whilst Australia’s Constitution is effective in protecting entrenched rights such as freedom of religion and political speech, implied rights issues are a gamble in the High Court of Australia. This has certainly been the case for Indigenous Activists such as Lex Wooten. Wooten was prevented from commenting on his case while on parole in Queensland. Effectively ‘gagging’ him for four years, the High Court ruled that such a condition of his parole by the State of Queensland was within the Constitution.

In our modern world, communication has become totally different than when the Constitution was enacted. Social media, web sites and blogs are now major parts of the information superhighway. Did the founding fathers imply that people could not talk about their legal cases to their peers?

South Africa on the other hand, has a Bill of Rights in Chapter 2 of its Constitution. These rights are fully enforceable and come from the hard work achieved by the people of Africa who were once ill treated in their own nation.

In particular, the comprehensive list of rights in South Africa includes such items as equality, human dignity and freedom. Australia’s Constitution does not have this Bill of Rights. Courts in South Africa are required to interpret statutes in accordance with this Bill of Rights, something lacking in Australia. I am left wondering how Wooten’s case would have progressed in that type of system?

In conclusion, our aging document is difficult to change. Our nation is disjointed with its various states and territories all having their own Bills of Rights that are in the end managed by the High Court of Australia. Governments are indecisive in matters concerning border protection when legislation must be ‘approved’ by the High Court before it can be enforced. South Africa has used many constitutional models to come up with their own modern version that contains the comprehensive Bill of Rights that must be considered by the courts. It is, in my opinion, a vast improvement on ours.

Wotton v Queensland (2012) 285 ALR 1″ [2012]
A. Facts

In 2004 an Aboriginal man, Mulrunji Doomadgee, died in police custody in circumstances that suggested police misconduct. As a result of this, around 300 people, including the plaintiff, participated in a riot. The plaintiff, Lex Wotton, was convicted of rioting contrary to the Criminal Code 1899 (Qld) ss 61 and 65. The plaintiff was sentenced to six years imprisonment, with a non-parole period of two years. Mr Wotton was later paroled, with the Parole Board attaching certain conditions. Although on parole, sch 4 of the Corrective Services Act 2006 (Qld) (‘CSA’) defined Mr Wotton as a prisoner. The impugned conditions limited the plaintiff’s right to speak to the media. Mr Wotton alleged that the conditions imposed on him as part of his parole infringed on the constitutionally protected freedom of political communication.

B. Parole Conditions

The case first concerned three conditions that were attached pursuant to s 200(2) of the CSA. Section 200(2) allows the attachment of conditions that the Parole Board ‘reasonably considers…necessary:

to ensure the prisoner’s good conduct; or

to stop the prisoner committing an offence.’

The conditions attached to the plaintiff prevented him from, inter alia:

(t) attending public meetings on Palm Island without the prior approval of his corrective services officer;
(u) speaking to or having any interaction whatsoever with the media; and
(v) receiving, from the media, any direct or indirect payment or benefit to him or through members of his family, or any agent or spokesperson, or through any other person.
After Mr Wotton applied for special leave of appeal to the High Court, the Parole Board removed condition (u) from his parole order. Accordingly, the Court did not consider the validity of this condition.


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