Ch. 4 - Sac study

Question 1

What are included in the rights covered by structural protection?

Answer 1

responsible government
representative government
separation of powers

Question 2

How does responsible government protect rights?

Answer 2

the gov is responsible & accountable to the parliament, and parliament to the people. This protects against the possibility of a gov abusing power and infringing rights

Question 3

How does representative government protect rights?

Answer 3

direct election by the people of their political reps gives the people the right to expect that they will represent their needs in par. as much as possible. If gov. ignores their needs, they will infringe rights and be voted out

Question 4

How does separation of powers protect rights?

Answer 4

helps protect individual rights by ensuring no one body can make law, administer law and rule on its legality.
Prevents abuse of rights as each arm of pwr acts a check on the other arms of power

Question 5

How can express rights be changed or removed?

Answer 5

Can be changed or removed through amending the Constitution by a successful referendum

Question 6

What are the 5 express rights?

Answer 6

Freedom of religion (does not apply to the states)
Discrimination on the basis of state
Free interstate trade and commerce
Acquisition of property on just terms
trial by jury for federal indictable offences

Question 7

What is freedom of religion? (RIPE)

Answer 7

the CW par. cannot pass laws which:

• Requires a religious test as a requirement for working in any CW office
• Imposes a religion
• Prohibits the free exercise of any religion
• Establishes a state religion

Question 8

What is discrimination on the basis of state?

Answer 8

it is unlawful for S and CW governments to discriminate against someone on the basis of the state in which that person resides

Question 9

What is free interstate trade and commerce?

Answer 9

Gives protection to Australian citizens from being discriminated against on the basis of the state they live in

Question 10

What is acquisition of property on just terms?

Answer 10

any acquisition of the property by the CW from any state or person must be on ‘just terms’

Question 11

What is trial by jury for federal indictable offences?

Answer 11

there must be a jury trial for indictable CW offences

Question 12

what are 3 limitations of trial by jury?

Answer 12

• does’t allow accused to choose not to have a jury if they wish
• Only for federal indictable offences, most come under state

Question 13

What is the implied right of freedom of political communication?

Answer 13

HC indicated freedom of speech and communication on matters concerning politics and government

Question 14

What is one strength of the CW constitution in protecting rights? (entrenched rights)

Answer 14

There are 5 entrenched rights in the C - and they are enforceable by the HC, which can declare invalid any legislation that attempts to limit them

Question 15

What is one strength of the CW constitution in protecting rights? (altering constitution)

Answer 15

Rights protected by the C can only be altered by amending the C through a successful referendum - which is difficult to achieve, making it unlikely these rights will be removed easily

Question 16

What is one strength of the CW constitution in protecting rights? (structural protection)

Answer 16

Structure of Australias democratic system of gov. is reflected in the C & offers some structural protection of rights - e.g. representative government, which in turn means all eligible Australians have the right to vote

Question 17

What are 2 weakness of the CW constitution in protecting rights?

Answer 17

• The C only protects a few rights
  The HC is unable to give advisory opinions - Means it must wait for dispute to come before court before it can decide whether or not a right exists. Results in degree of uncertainly as to the extend of the constitutionally guaranteed rights

Question 18

what is a weakness of the CW constitution in protecting rights? (judges)

Answer 18

HC judges are not accountable to the people - which is contrary to our democratic principles. Legislation is passed by reps of the people who are accountable for the laws they make

Question 19

what is one weakness of the CW constitution in protecting rights? (changing)

Answer 19

Difficult to include new rights or alter existing rights because changing the C is difficult- could make it hard to include new rights, or alter existing rights, in the C to reflect changes in attitudes and technology

Question 20

what is one strength of the CW constitution in protecting rights? (challenged)

Answer 20

Limiting or removing an express or implied right can be challenged -
Any leg that attempts to limit or remove an express or implied right can be challenged in the HC - if the challenge is upheld the leg. will be ruled invalid

Question 21

what are 4 strengths of the CW constitution in protecting rights?

Answer 21

• Five express rights
• Can only be altered by amending the Constitution through referendum
• Structure of Australias democratic system of gov. is reflected in the C & offers some structural protection of rights
• Limiting or removing an express or implied right can be challenged and declared invalid

Question 22

what are 4 weaknesses of the CW constitution in protecting rights?

Answer 22

• The C only protects a few rights
• The HC is unable to give advisory opinions
• HC judges are not accountable to the people
• Difficult to include new rights or alter existing rights

Question 23

What are 4 similarities between the Australian and South African approaches?

Answer 23

• Court can find an act unconstitutional because it contravenes w/ one of the express rights
• Parliament can change or amend the offending Act
• Both have rights entrenched within it’s C
• Citizens protected are protected separation of powers

Question 24

what is one similarity between the Aus and South African approach? (find an act unconstitutional)

Answer 24

Court can find a section of an act is unconstitutional - because it contravenes one of the express rights and therefore the relevant section of the Act is invalid

Question 25

what is one similarity between the Aus and South African approach? (separation of powers)

Answer 25

Citizens protected by principle of separation of powers - Under this principle, the HC is a separate independent body

Question 26

What are 4 differences between the Australian and South African approaches?

Answer 26

• SA list of express rights is extensive
• SA complaint about infringement of rights without standing
• SA amending requirements
• SA courts and tribunals must uphold the spirit and purpose of the Bill of Rights

Question 27

Which Constitution better protects rights and why? (2)

Answer 27

Australia

• SA parliament can override some rights in extreme situations, such as a state of emergency
• Rights in the Bill of Rights can be interpreted narrowly and injustices can occur

Question 28

What is the difference between Aus and SA with relation to how the C is amended?

Answer 28

SA - amendment must be passed by 2/3 of the National Assembly members and supported by 6/9 provinces

Question 29

What is the difference between Aus and SA with relation to ‘courts and tribunals must uphold the spirit and purpose of the Bill of Rights’

Answer 29

SA when interpreting legislation, developing common law or customary law, every court or tribunal must promote the spirit and purpose of the bill of rights. Australia does not need to promote the concept of protected rights