Ch. 4 - Sac study Flashcards
What are included in the rights covered by structural protection?
responsible government
representative government
separation of powers
How does responsible government protect rights?
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
How does representative government protect rights?
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
How does separation of powers protect rights?
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
How can express rights be changed or removed?
Can be changed or removed through amending the Constitution by a successful referendum
What are the 5 express rights?
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
What is freedom of religion? (RIPE)
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
What is discrimination on the basis of state?
it is unlawful for S and CW governments to discriminate against someone on the basis of the state in which that person resides
What is free interstate trade and commerce?
Gives protection to Australian citizens from being discriminated against on the basis of the state they live in
What is acquisition of property on just terms?
any acquisition of the property by the CW from any state or person must be on ‘just terms’
What is trial by jury for federal indictable offences?
there must be a jury trial for indictable CW offences
what are 3 limitations of trial by jury?
- does’t allow accused to choose not to have a jury if they wish
- Only for federal indictable offences, most come under state
What is the implied right of freedom of political communication?
HC indicated freedom of speech and communication on matters concerning politics and government
What is one strength of the CW constitution in protecting rights? (entrenched rights)
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
What is one strength of the CW constitution in protecting rights? (altering constitution)
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
What is one strength of the CW constitution in protecting rights? (structural protection)
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
What are 2 weakness of the CW constitution in protecting rights?
- 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
what is a weakness of the CW constitution in protecting rights? (judges)
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
what is one weakness of the CW constitution in protecting rights? (changing)
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
what is one strength of the CW constitution in protecting rights? (challenged)
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
what are 4 strengths of the CW constitution in protecting rights?
- 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
what are 4 weaknesses of the CW constitution in protecting rights?
- 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
What are 4 similarities between the Australian and South African approaches?
- 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
what is one similarity between the Aus and South African approach? (find an act unconstitutional)
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
