11.4 The Express Protection of Rights

Question 1

What is an express right?

Answer 1

Rights that are stated in the Australian Constitution. Express rights are entrenched, meaning they can only be changed by a referendum

Question 2

What are the 5 express rights?

Answer 2

• the right to freedom of religion
• the right to free interstate trade and commerce
• the right to receive “just terms” when property is acquired by the Commonwealth
• the right to trial by jury for indictable Commonwealth offences
• the right not to be discriminated against on the basis of the state where you reside

Question 3

What is the right to freedom of religion?

Answer 3

Section 116 states that Commonwealth Parliament cannot make a law which:

• establish a state religion
• imposes any religious observance
• prohibits the free exercise of any religion
• requires a religious test as a requirement for holding any Commonwealth office

Question 4

What is the right to trade within the Commonwealth?

Answer 4

Interstate trade and commerce must be free. The right prevents parliament from treating interstate trade differently from trade within a state.

It also provides freedom of movement between states, without burden or hindrance. For example, it restricts taxes on goods moving from one state to another

Question 5

What is the right to the acquisition of property on just terms?

Answer 5

Commonwealth must pay fair and reasonable compensation for property that is compulsorily acquired.

The property includes: tangible and intangible property, real (immovable property such as land) and personal (movable property such as goods) property

Question 6

When can the Commonwealth acquire property?

Answer 6

When the purpose or area has the power to make laws: airports and national parks

Question 7

What section of the constitution gives Commonwealth power to acquire property

Answer 7

Section 51

Question 8

What section of the Constitution protects free interstate trade?

Answer 8

Section 92

Question 9

What is the right to a jury trial for an indictable Commonwealth offence?

Answer 9

The outcome in a Commonwealth indictable offence trial must be decided by a jury unanimously

Question 10

What section of the Constitution protects a jury trial in indictable Commonwealth offences?

Answer 10

Section 80

Question 11

What is the right to not experience discrimination based on the state you reside in entail?

Answer 11

It is unlawful for state and Commonwealth governments to discriminate against someone on the basis of the state in which that person resides

Question 12

What section of the Constitution protects against state discrimination?

Answer 12

Section 117

Question 13

What are the strength of express rights?

Answer 13

• express rights impose limits on parliament when making laws
• any person can take a case to the High Court if they believe that the law infringes these rights
• Express rights cannot be removed by the Commonwealth Parliament without a referendum
• High Court can act swiftly when declaring ultra vires
• Express rights are clearly stated and stable in the Constitution which allows the public to be aware

Question 14

What are the weakness of express rights?

Answer 14

• express rights can only be changed by a referendum, which is complex
• the cost of initiating a court case is high even if there is a right being infringed
• rights are only protected limitedly as many only apply to Commonwealth
• protection of rights does not prevent Commonwelath Parliament from passing the law, people must challenge
• express rights are relatively few compared to other countries