Chapter 11.6 Flashcards

the express protection of rights

1
Q

express right

A

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.

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2
Q

the 5 express rights

A
  • 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)
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3
Q

common law

A

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

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4
Q

religion

A

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
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5
Q

trade within the commonwealth

A

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

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6
Q

acquisition of property on just terms

A

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

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7
Q

Jury trial

A

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

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8
Q

discrimination on the basis of state residence

A

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.

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9
Q

strenghts of express rights

A
  • 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.
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10
Q

weakness of express rights

A
  • 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
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