Legal Studies · Year 12 · Human Rights · 2.º Período

Domestic Protection of Human Rights

Students investigate how human rights are protected in Australia through the Constitution, common law, and statute law. They debate the necessity of an Australian Charter of Rights.

TL;DR:Australia is unique among Western democracies because it lacks a federal Bill of Rights. This topic explores how human rights are instead protected through a patchwork of the Constitution, common law, and statute law. Students investigate 'express' and 'implied' rights within the Constitution, such as the implied right to freedom of political communication. They also examine landmark statutes like the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984.

• ACARA Content Descriptions
• HSC Core 2: Human Rights - Human rights in Australian law
• VCE Unit 4: The people and the law

About This Topic

Australia is unique among Western democracies because it lacks a federal Bill of Rights. This topic explores how human rights are instead protected through a patchwork of the Constitution, common law, and statute law. Students investigate 'express' and 'implied' rights within the Constitution, such as the implied right to freedom of political communication. They also examine landmark statutes like the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984.

A significant part of this unit is the debate over whether Australia should adopt a Charter of Rights. Students evaluate the arguments for (increased protection, clarity) and against (judicial activism, loss of parliamentary sovereignty). This topic is crucial for understanding the Australian legal identity and the role of the High Court in interpreting rights. Students grasp this concept faster through structured discussion and peer explanation, where they can weigh the pros and cons of different legal models.

Key Questions

1. How does the Australian Constitution protect human rights?
2. What is the role of common law in rights protection?
3. Should Australia adopt a federal Charter of Rights?

Watch Out for These Misconceptions

Common Misconception

The Australian Constitution has a list of rights like the US Bill of Rights.

What to Teach Instead

The Australian Constitution has very few express rights (e.g., right to trial by jury for indictable offences). A 'scavenger hunt' through the Constitution helps students see how limited these explicit protections actually are.

Common Misconception

Common law is the strongest way to protect rights.

What to Teach Instead

Common law can be overridden by any Act of Parliament. Using a 'case study' where a statute changed a common law right (like privacy or protest) helps students understand the hierarchy of laws in Australia.

Active Learning Ideas

Formal Debate

A Charter of Rights for Australia

The class is divided into 'Pro-Charter' and 'Anti-Charter' teams. They must use evidence from other jurisdictions (like Victoria or the UK) to argue whether a federal charter would improve justice in Australia.

45 min·Whole Class

Stations Rotation

Sources of Protection

Stations are set up for Constitution, Common Law, and Statute Law. Students must find one specific right protected by each source and explain a limitation of that protection.

40 min·Small Groups

Think-Pair-Share

Implied Rights

Students read a summary of the 'Lange' case. They discuss with a partner how the High Court 'found' a right that wasn't explicitly written in the Constitution and what this means for the power of judges.

25 min·Pairs

Frequently Asked Questions

What are express rights in the Australian Constitution?

There are five express rights: the right to freedom of religion (s116), the right to trial by jury for federal indictable offences (s80), the right to 'just terms' compensation for property (s51), the right to free trade between states (s92), and protection against discrimination based on state of residence (s117).

What is an implied right?

An implied right is a right that is not explicitly stated in the Constitution but is found by the High Court to be necessary for the system of government the Constitution creates. The most famous example is the implied right to freedom of political communication.

Why doesn't Australia have a Bill of Rights?

Australia's founders believed the 'Westminster system' of responsible government and the common law were sufficient to protect rights. There are also concerns that a Bill of Rights would give too much power to unelected judges over the elected parliament.

How can active learning help students understand domestic rights protection?

Active learning helps students navigate the 'patchwork' nature of Australian law. By participating in a 'rights audit' of a current news story, students must identify which specific law applies, helping them understand how statute, common law, and the Constitution interact in practice.