Activity 8b

1. Arguments in support of the High Court interpreting sections 7 and 24 of the Australian Constitution include:

• Representative government provides fairly broad guarantees that the Commonwealth, the states, the territories and even local government will not abuse the democratic rights of Australians – it is flexible enough to change with changing circumstances, and can be interpreted by the courts on a case-by-case basis.
• High Court justices are not political entities – they therefore are making decisions removed from short-term voter and media interests, which means they can be more objective and protect the vulnerable in society.
• History has shown interpretation of the Constitution to be the easiest method to achieve change, and therefore it is the most powerful and effective – other methods such as referenda have such a low success rate it hampers their ability to update and evolve the most important law in the country.
• The interpretation of sections 7 and 24 is fully enforceable by the High Court because it is interpretation of the Constitution – any law breaching the freedom can be declared invalid by the Court, and no parliament or government has the power to change or ignore the Court’s decision.

Arguments against the High Court interpreting sections 7 and 24 of the Australian Constitution include:

• The High Court makes decisions on what the Constitution means – not what it should mean. The scope and application of ss7 and 24 might therefore have a negative impact on society. For example, in ACTV and Unions NSW the Court struck out laws that were trying to prevent the corruption of representative government, because, when looked at from another perspective, they were also burdening and distorting representative government.
• The justices of the High Court are unelected, and their decisions on the interpretation of the Constitution cannot be overridden by the elected parliament – this is an undemocratic way of making law and expanding the meaning of the Constitution – which is supposed to be the “people’s document.”
• Parliament and the executive can infringe the protection provided by sections 7 and 24 in many ways, and only those laws that are successfully challenged will be struck out – other laws, that are perhaps not challenged because no-one realises there are grounds for a challenge or has the time and money to do so, will stay in operation.
• Representative government is not written explicitly into the Constitution, so it is impossible for an everyday Australian to find simply by reading the Act – instead a person must know which High Court cases to read, and then decipher judgments and precedent in order to distil the scope of the protection from them. This means, also, that the exact meaning and scope is even more ambiguous than that of express rights; the only way to test confidently what it means and includes is to take a case to the High Court.

2. This question does not exist

3. The task word ‘discuss’ require students to consider both sides of something. In this case, ‘discussing’ the High Court’s interpretation of sections 7 and 24 of the Australian Constitution requires students to write about relevant strengths and weaknesses of the Court’s interpretation of sections 7 and 24. Responses will vary according to the arguments selected.

4. The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence, that there is support for the High Court’s interpretation of sections 7 and 24 of the Australian Constitution. In this case, ‘evaluating’ the Court’s interpretation of sections 7 and 24 requires students to write about relevant strengths and weaknesses.

This question asks for an evaluation by feature – this means that students should point out strengths and weaknesses by feature. For example, in relation to the scope of sections 7 and 24, representative government ensures that the parliament will be democratically elected and that it will be re-elected by the people at regular intervals. This should ensure the parliament respects the rights and freedoms valued by the majority of citizens. Law-makers who pass laws violating the rights of individuals in society may be voted out of office and replaced with new law-makers who promise to ‘undo’ the rights abuses. However, sections 7 and 24 offer only vertical protection – this means they only protect individuals from the power of government. They do not offer horizontal protection –they do not protect individuals from the power of other individuals or powerful companies. The High Court’s interpretation of sections 7 and 24 is simply a constitutional limit on the legislative powers of Parliament. Overall, while the High Court’s interpretation of sections 7 and 24 of the Australian Constitution does not protect the personal rights of citizens, it does ensure that the parliament does not abuse the rights of the majority of Australians.