AOS 2- The Constitution And The Protection Of Rights

Question 1

Rights

Answer 1

An interest recognised and protected by the law.

Question 2

How are rights protected in Australia?

Answer 2

Through legislation and the common law

Question 3

Structural protection

Answer 3

A mechanism in the constitution that indirectly protects individual rights.

Question 4

How does structural protection protect rights?

Answer 4

By providing for responsible government, separation of powers and representative government which acts as a check and balance on an abuse of power.

Question 5

Which section of the constitution provides responsible government?

Answer 5

S53

Question 6

Which sections of the constitution provide for the structure of representative government?

Answer 6

~s7 senators to be chosen by the people

~s24 HOR to be chosen by the people

Question 7

Which case study relates to structural protection?

Answer 7

Roach v Electoral Commissioner (2007)

Question 8

Express rights

Answer 8

Rights that are written in the Constitution and which can only be removed using the referendum process.

Question 9

What are the features of express rights?

Answer 9

They are entrenched and enumerated.

Question 10

How many express rights are in the constitution and what are they?

Answer 10

1. Freedom of religion s116
2. Interested trade and commerce/freedom of movement s92
3. Discrimination on the basis of state s117
4. Acquisition of property on just terms s51(xxxi)
5. Jury trial s80

Question 11

What case study relates to express rights?

Answer 11

Williams v commonwealth of Australia (2012)

Question 12

Implied rights

Answer 12

Rights which are not expressly written in the constitution but have been found to exist through high court interpretation.

Question 13

What implied rights do Australians have?

Answer 13

1. The right of freedom of political communication.

Question 14

Which case relates to implied rights?

Answer 14

Lange v Australian broadcasting corporation (1997)

Question 15

Which states or territories have a bill of rights in Australia?

Answer 15

ACT and Vic

Question 16

What are the strengths of the Australian constitution in protecting rights?

Answer 16

1. Express rights can only be changed by the referendum process, through the community support.
2. Express rights are enforceable through the high court.
3. New rights can be added through a referendum.
4. Structural protection prevents an abuse of power.
5. Rights can be declared and clarified through the high court.

Question 17

What are the weaknesses of the constitution in protecting rights?

Answer 17

1. The lengthy process to change express rights can result in a disparity between current rights and current social attitudes and technology.
2. Very few rights are protected by the constitution.
3. Protection of rights through common law is time consuming and expensive.

Question 18

What is Canada’s bill of rights?

Answer 18

Canadian charter of rights and freedoms.

Question 19

What express rights are found in Canada’s charter?

Answer 19

1. Democratic
2. Mobility
3. Legal
4. Equality
5. Language

Question 20

What are the structural protections found in the Canadian charter of rights and freedoms?

Answer 20

1. Representative government
   - s2 right to free speech
   - s3 right to vote.
2. Separation of powers
   Members of House of Commons are chosen by the people.

Question 21

What are similarities between the Australian constitution and the Canadian charter of rights and freedoms?

Answer 21

1. S24 of the Australian constitution and S3 of the charter grant the right to vote for members of the lower house.
2. Both the charter and the constitution have rights that are entrenched.
3. S52 of the charter states that legislation which infringes the charter can be declared invalid which is similar to Australia’s Declaration of invalidity.
4. Both the charter and constitution can be changed through a referendum.

Question 22

What are the differences between the charter and the constitution?

Answer 22

1. S7 of the constitution states that senators are chosen by the people, whereas, in Canada the senators are recommended by the prime minister.
2. The charter includes S33 (Nothwithstanding clause) which allows parliaments to make laws temporarily immune from judicial review, whereas, Australia does not have this overriding provision.
3. The charter awards damages or interprets laws so that rights aren’t infringed, whereas, in Australia the legislation is declared invalid if it infringes rights.
4. The charter allows parliament to limit the rights protected by the charter (s1) whereas the constitution doesn’t have a limitation of rights.
5. The Supreme Court of Canada may give advisory opinions to the Parliament whereas, in Australia, the high court is not allowed to do this and the court will only consider an issue when a case is brought forward.