Chapter 11.6

Question 1

express right

Answer 1

An express right or an explicit right is a right that is entrenched in the Australian constitution meaning it cant be amended or removed without doing the referendum process
- The Australian Constitution contains five express rights.
established by section 128. -
- Express rights operate as an explicit check on the
power of parliaments.
- Any law made by parliament that infringes an express right can be declared invalid by the High Court.

Question 2

the 5 express rights

Answer 2

• The right to freedom of religion (section 116)
• the right to free interstate trade and commerce (section 92)
• the right to recieve ‘just terms’ when property is acquired by the commonwealth (section 51 subsection 31
• the right to trial by jury for indictable commonwealth offences (section 80)
• the right not to be discriminated against on the basis of the state where you reside (section 117)

Question 3

common law

Answer 3

law made by judges
through decisions made
in cases; also known as
case law or judge-made
law (as opposed to
statute law)

Question 4

religion

Answer 4

section 116 of the australian constitution sets out the express right of religion which states the commonwealth parliament can not make law which:

• establishes a state religion (declares a particular religion as the state religion)
• imposes any religious practices
• prohibits the free exercise of any religion
• requires a religious test as a requirement for holding any commonwealth office

Question 5

trade within the commonwealth

Answer 5

Under section 92 of the Constitution, interstate trade and commerce must be free. This right prevents parliament from treating interstate trade differently from trade within a state. It provides freedom of movement between states, without burden

Question 6

acquisition of property on just terms

Answer 6

Under section 51 subsection 31 of the Australian Constitution, the Commonwealth must provide just terms when
acquiring property.The Commonwealth is only able to acquire property for a purpose or area for which it
has the power to make laws

Question 7

Jury trial

Answer 7

section 80 of the Australian constitution states that for any indictable offences there must be a trial by jury and everyone has the right to trial by jury

Question 8

discrimination on the basis of state residence

Answer 8

Under section 117 of the Constitution, it is unlawful for state and Commonwealth governments to
discriminate against someone on the basis of the state in which that person resides.

Question 9

strenghts of express rights

Answer 9

• Express rights are entrenched in the constituion meaning it cannot be abolished without a refrendum
• if a person believes that a law infringes upon these rightd they are free and able to take the matter to the high court
• High court can act swiftly in declaring a law ‘ultra vines’ meaning beyond the powers of parliament and therefore invalid
• Express rights impose limits on parliament when making law in certain areas.
• The High Court is independent and will make
  decisions protecting the express rights even if
  they are contrary to the views or preferences
  of governments.

Question 10

weakness of express rights

Answer 10

• if a persons rights have been infringed initiating a high court case is costly and time consuming
• express rights are limited in scope meaning they only relate to some circumstances
• because referendums are so hard to pass, express rights in constitution have not increased or been amended therefore reducing the checks on government
• the express protections does not stop the commonwealth from passing a law, it will have to be challenged for the law to be declared invalid