Constitutional Jurisprudence Essay

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The focus of this essay will be centralized upon arguing that the inherent weakness of “Australian Constitutional Jurisprudence ” lies in omission of a framework which explicitly protects civil and politic rights of Australian citizens. Nevertheless, this may be remedied by the incorporation of a constitutionally entrenched Bill of Rights which will ensure that implied constitutionally rights and freedom will become absolute . Thus in countries such as Canada which has its own Canadian Charter of Rights “the electoral system is subject to less judicial intervention ” as “contrary [to the Charter] the legislature may not legislate and the executive may not act ” this enables “the courts to invalidate legislation and conduct which infringes the Bill of Rights. ” Firstly, this essay will critique the undue restrictions placed on the voting rights of prisoners by the High court through a humanist perspective – noting both arguments in favour and in opposition of the decision. Following this, this essay will explore the less controversial case of Rowe v Electoral Commissioner . Furthermore, the essay will conduct a close analysis of the freedom of political communication and the restrictions which it entails. The Bill of Rights Paradox Australia’s prohibition against the adoption of a charter of rights stems from the beliefs of “framers of the constitution ” as it was declared that “confidence in the legislative branch of government and doctrine of responsible government ensured the protection of the rights of the people of Australia. ” The aforementioned ideal has been widely accepted and is instilled in contemporary legal scholarship. This is demonstrated through Mason J’s statement in Nationwide News Pty Ltd v Wills that the dile... ... middle of paper ... ...lidated “section 299 (1)(d)(ii) of the Industrial Relations Act 1988 (Cth) which “imposed sanctions upon those who intentionally bought the Commission into disrepute. ” With reference to section 7 and 24 of the Constitution the learned judges concluded that the concepts of responsible and representative government are analogous with the concept of freedom of speech . The ‘proportionality test, as discussed above in Roach’s case was applied in this case. It is my firm belief that by enabling the public to access information the High Court was just in its’ conclusion. Conversely, in Australian Capital Television Pty Ltd v Commonwealth the High Court invalidated the “Political Broadcast and Political Disclosure Act” which “sought to prohibit political advertising by means of radio and television.” The judgement of McHugh J, which this essay both endorses and supports

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