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LEGAL STUDIES UNIT 3 > Chapter 4- Protection Of Rights > Flashcards

Chapter 4- Protection Of Rights Flashcards

1
Q

❓❓❓what are three ways the constitution protects rights?

A
  • structural protection of rights
  • express rights
  • implied rights
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2
Q

❓❓❓define structural rights, and state the three parts

A

= the systems or mechanisms built into the commonwealth constitution that indirectly protect human rights

-includes: separation of powers, responsible government, representative government

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3
Q

❓❓❓what is the separation of powers? (Structural protection of rights)

A

-prevents power being concentrated in one set of hands and helps to protect individual rights by providing checks and balances on the power of the commonwealth parliament
(Protects against the abuse of power)

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4
Q

❓❓❓what is a representative government? (Structural protection of rights)

A

-direct election by the people of their politic, representatives gives the people the right to expect that those representatives will represent their needs in parliament as much as possible

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5
Q

❓❓❓what is a responsible government? (Structural protection of rights)

A

-protects rights of citizens by making the government accountable for their actions and decisions and protects against the possibility of a government abusing power

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6
Q

❓❓❓define express rights

A

-rights which are explicitly, stated in the constitution (entrenched in constitution)
(Expressed as restriction on the commonwealth parliament)

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7
Q

❓❓❓how many express rights are there?

A

-five

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8
Q

❓❓❓name three express rights and their sections

A
  • s.116 limited freedom of religion
  • s.92 protects the general right to free trade between states
  • s.117 freedom from interstate discrimination
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9
Q

❓❓❓explain s.116 freedom of religion and two limitations (express rights)

A

Prevents the commonwealth from passing laws that restrict religious choice in five clear ways:

  • the law can’t create a national religion
  • the law can’t ban a religion
  • the law can’t restrict the free practice of a religion
  • the law can’t force the people to follow any particular religious observance
  • the high court has implied the right of an individual to have no religion

LIMITATIONS
-doesn’t prevent state laws from banning or creating a religion
-only protects from commonwealth legislation that has the purpose of restricting religion, rather than from laws that have the effect of it
(E.g. a law may indirectly limit the free exercise of a religion if they have a legitimate reason for doing so, for example if practising a religious belief endangers public safety)

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10
Q

❓❓❓explain s.92 protects the general right to free trade between states, and two limitations (express rights)

A
  • designed to ensure businesses can trade with consumers and other businesses in other states without restriction
  • laws that are designed to protect businesses in one state by preventing or taxing interstate trade are prohibited under this section

LIMITATIONS

  • it isn’t an individual right that protects an individual’s personal movement, but rather a general right to free trade within Australia
  • the word ‘free’ could mean entirely unrestricted, or that you don’t have to pay taxes (ambiguous meaning)
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11
Q

❓❓❓explain s.117 freedom from interstate discrimination, and a limitation (express rights)

A

-prohibits laws in one state from placing a restriction or burden on a resident of another state, but only when that restriction or burden doesn’t apply to the people from the home state as well
-protects against laws which discriminate against someone because they don’t live in that state
(E.g.) charging students from another state to pay full fare while students from that state pay concession is seen as giving a benefit to local students rather than putting a burden on interstate ones)

LIMITATION:
-this right’s application is ambiguous. There is an unclear line between benefiting the residents of home states and discriminating against residents of other states

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12
Q

❓❓❓explain s.51 (xxxi) the acquisition of property on just terms (express rights)

A
  • commonwealth can’t pass a law which allows them to purchase a property without a fair price
  • recognises the basic right of all individuals to private ownership, while at the same time recognising that in some circumstances the government had the right to acquire property from any state or individual ‘on just terms’. Individuals usually relieve compensation money
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13
Q

❓❓❓explain s.80 trial by jury

A

-commonwealth can’t pass a law that prohibits a person being tried by a jury, if charged with a Commonwealth Indictable Offence e.g. Trafficking, immigration, violation, counterfeiting

  • jury’s verdict must be unanimous
  • section only applies to commonwealth offences
  • government can avoid this section by legislating for the offence to be a summary offence
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14
Q

☀️☀️☀️EXTENT TO WHICH ENTRENCHED RIGHTS ARE PROTECTED

A
  • protected under s.128 of the constitution which stipulates the process for changing the words of the constitution
  • entrenched rights can only be changed or removed with a successful referendum
  • history tells us that it is very difficult to have a successful referendum
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15
Q

❓❓❓define implied rights

A

-those rights that are not explicitly stated or written in the constitution but have been given through High Court interpretation of the constitution
(Not stated, but intended by the writers of the constitution)

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16
Q

❓❓❓what is the only implied right recognised by the High Court?

A

-‘the right to freedom of speech and communication on political matters’

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17
Q

❓❓❓what do sections 7 and 24 require, and what does this mean?

A
  • section 7 requires that the senate shall be composed of senators for each state, directly chosen by the people of the state, voting, until the parliament otherwise provides, as one electorate
  • section 24 requires the House of Representatives shall be composed of members directly chosen by the people of the commonwealth
  • therefore , in order for people to make informed decisions about the people they elect, then freedom of political communication is essential
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18
Q

❓❓❓what is the full name of the ‘Political Advertising Case’

A

-‘Australian Capital Television Pty Ltd v. Commonwealth (1992)’

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19
Q

❓❓❓what are e facts of the ‘Political Advertising Case’?

A
  • commonwealth passed ‘Political Broadcasts and Disclosure Act 1991’ to amend the ‘Broadcasting Act’, imposing bans on radio and television advertising for federal, state and local elections
  • the plaintiff (TV Broadcaster) challenged the validity of the Act
  • the high court held that the law was invalid because there was an implied right of freedom of communication on political matters
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20
Q

❓❓❓explain the high court decision on the ‘Political Advertising Case’

A

The high court stated that:
-the constitution establishes a system of representative government. In this, members of parliament are directly elected by voters. Thus, it is implied that a free discussion or debate about public affairs and political matters is essential for voters to make an informed choice at election time, and therefore elect a representative government

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21
Q

❓❓❓what is the significance of the ‘Political Advertising Case’?

A
  • established the only implied right recognised by the High Court: Freedom Of Political Communication
  • however, the high court didn’t find that a general, right to free speech is protected by the constitution, but only a right in regards to ‘political communication’
22
Q

❓❓❓what are four strengths of the constitution as a means of protecting rights?

A
  • express rights can be changed unless through a referendum
  • the implied right of freedom of political communication has been found to be contained in the constitution, showing that rights can be declared and clarified by the high court when needed to preserve justice
  • the courts can intercept legislation and the constitution in a timely fashion as the need arises to avoid injustices
  • express rights in the constitution are enforceable through the high court. Any section of legislation that is found to be outside the power of parliament under the constitution is immediately inoperable to the extent of the section that is found to be ultra vires
23
Q

❓❓❓what are four weaknesses of the constitution as a means of protecting rights?

A
  • rights contained in a constitution are difficult to change due to the referendum process. Rights at lag behind when attitudes change and technology advances with time
  • very few rights are protected under the constitution
  • the rights that are protected are limited in scope (e.g. Many only apply to the commonwealth parliament and no the states, and some are narrow such as trial by jury)
  • using common law as a means of protecting rights depends on a case coming before the courts, which is expensive and time consuming
24
Q

❓❓❓what are the four roles of the constitution?

A
  • facilitates the division of lawmaking powers by setting out what the commonwealth parliament can do with respect to lawmaking
  • provides a legal framework for the creation of the commonwealth parliament, including the composition of the House of Representatives and senate
  • provides for direct election of members of House of Representatives and senate by the people of the commonwealth of Australia
  • gives the high court the power to interpret the constitution if the need arises
25
Q

❓❓❓name and explain the four roles of the high court

A

TO ACT AS GUARDIAN OF THE CONSTITUTION
-ensures constitution remains relevant to the Australian people

TO KEEP THE CONSTITUTION UP TO DATE
-the need for the high court to interpret words within the constitution arises from changes that occur in society, such as changes in attitude and technology, and changes in community standards

TO ACT AS A CHECK AND BALANCE
-individuals, groups, and state and commonwealth bodies can bring a matter to the high court for a ruling to be made on whether or not a new law is constitutional

TO GIVE MEANING TO THE CONSTITUTION
-high court must listen to the facts of a case and decide is an act that has been passed is unconstitutional

26
Q

☀️☀️☀️THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

A
  • adopted under constitution act in 1982

- sets out fundamental freedoms and classifies entrenched rights into main categories

27
Q

❓❓❓how can the Canadian charter be amended?

A
  • through a referendum, which np then changes the words in the constitution
  • i.e. Proposal must be passed by parliament and then the people (must meet ‘yes’ vote of 50% of population and majority in 2/3 provinces)
28
Q

❓❓❓what sre the five categories of entrenched rights in the Canadian charter?

A
  • fundamental freedoms
  • mobility rights
  • democratic rights
  • legal rights
  • equality rights
29
Q

❓❓❓what are four fundamental freedoms? (Canadian charter of rights and freedoms- entrenched rights)

A
  • freedom of conscience and religion
  • freedom of thought, belief as, opinion, and expression
  • freedom of peaceful assembly
  • freedom of association
30
Q

❓❓❓name a mobility right (Canadian charter of rights and freedoms- entrenched rights)

A

-for citizens within Canada and the right to enter or leave Canada

31
Q

❓❓❓name a democratic right (Canadian charter of rights and freedoms- entrenched rights)

A

-including the right to vote for Canadian citizens in parliamentary elections and an assurance that the parliament wills it at least once every year

32
Q

❓❓❓name six legal rights (Canadian charter of rights and freedoms- entrenched rights)

A
  • right to life, liberty and security
  • right to be protected from unreasonable search of seizure
  • right not to be arbitrarily detained
  • rights on arrest
  • extensive trail rights
  • freedom from cruel and unusual punishment
33
Q

❓❓❓name two equality rights (Canadian charter of rights and freedoms- entrenched rights)

A
  • equality before law, and freedom from discrimination on extensive grounds
  • language rights regarding the use of French and English in public life and education
34
Q

☀️☀️☀️ENFORCEMENT OF RIGHTS

A
  • the Supreme Court determines meaning and application of these rights
  • if a law conflicts with the rights in the constitution, courts may declare it invalid
35
Q

❓❓❓which rights can’t the government override?

A

-democratic and mobility rights

36
Q

❓❓❓what must laws that don’t override rights do, and how long can they be overridden for?

A
  • they must expressly state their intention

- 5 years

37
Q

❓❓❓define the sunset clause

A

-after 5 years the law must be re-enacted by parliament

38
Q

❓❓❓when can’t courts declare a law invalid?

A

-if it has been passed by parliament and properly recognised as overriding the rights of the charter

39
Q

❓❓❓what is the reasonable limit clause?

A

-s.1 of the charter, states that parliament can limit the rights if it “can be demonstrably justified in a free and democratic society” e.g. R v. Sharpe 2001

40
Q

❓❓❓what have Canadian courts interpreted a reasonable limit to mean?

A

-it means that parliament can pass laws to Li it the rights set out in the charter provided that the laws are justified I’m a democratic society to limit them

41
Q

❓❓❓what happens to laws that violate the charter, and why might courts do this?

A
  • laws that violate the charter can be declared invalid and the courts can also temporarily suspend the application of a law
  • courts may do this to amend the legislation so that it does not infringe the rights in the charter
42
Q

❓❓❓what three things can the Supreme Court also do?

A
  • interpret legislation so that it does not infringe rights
  • award damages for an infringement of rights
  • disallow evidence of a right
43
Q

❓❓❓name three similarities between Canada and Australia’s protection of rights

A
  • both have entrenched rights
  • rights are fully enforceable by the courts
  • they both scrutinise bills
44
Q

❓❓❓explain ‘both have entrenched rights’ (similarities: Canada and Australia’s protection of rights)

A
  • means a right can only be abolished if the constitution is amended (through referendum)
  • in Australia s.128 of the constitution sets out the referendum process, where a double majority is needed. This means that a majority of the population, in either country, as well as a majority of voters in a majority of states, in Australia, must all vote ‘yes’.
  • a similar process I’d needed in Canada for the words of the constitution to change
  • this protection ensures that in both countries, the people have the final power to change the entrenched rights
45
Q

❓❓❓explain ‘rights are fully enforceable by the courts’ (similarities: Canada and Australia’s protection of rights)

A
  • means legislation which infringes any right can be declared invalid by the Canadian Supreme Court, and, similarly, Australia’s high court
  • the law is deemed invalid and the act sill cease to have any effect (only entrenched rights)
  • e.g. Australian Capital Television v. The Commonwealth
46
Q

❓❓❓explain ‘scrutinise bills’ (similarities: Canada and Australia’s protection of rights)

A
  • in Australia, we have standing committees which scrutinise bills before they become laws to check if they infringe rights protected in the constitution
  • similarly, in Canada the minister for justice and the standing committee of each house of parliament must certify before bills are passed that they don’t infringe the charter
47
Q

❓❓❓name four difference between Canada and Australia’s protection of rights

A
  • Canada has a charter of rights and freedoms
  • Canadian charter contains a comprehensive set of rights
  • Canada can limit rights
  • Canadian courts can exclude evidence in violation of the charter
48
Q

❓❓❓explain ‘Canada ha a charter of rights and freedoms’ (differences: Canada and Australia’s protection of rights)

A
  • this was adopted in 1982 via a successful referendum

- Australia doesn’t have a constitutionally protected bill of rights

49
Q

❓❓❓explain ‘Canadian charter contains a comprehensive set of rights’ (differences: Canada and Australia’s protection of rights)

A
  • e.g. Freedom of religions, mobility rights

- Australia only has 5 entrenched rights in the constitution and one implied rights

50
Q

❓❓❓explain ‘Canada can limit rights’ (differences: Canada and Australia’s protection of rights)

A
  • where the limit can be “demonstrably justified in a free and democratic society”
  • in Australia, courts can’t limit entrenched rights

E.g. R v. Sharpe 2001: banned the possession of child pornography
-limitation was justified as there was evidence to suggest a link between child porn and harm to children

51
Q

❓❓❓explain ‘Canadian courts can exclude evidence in violation of charter’ (differences: Canada and Australia’s protection of rights)

A

-this rights is not recognised in the Australian constitution

52
Q

❓❓❓what are rights?

A

-an interest recognised and protected by the law, respect for which is a duty, and disregard for which is wrong

LEGAL STUDIES UNIT 3 (4 decks)

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