Constitutional rights

Question 1

What is the name of the Australian Constitution (Act)

Answer 1

Commonwealth of Australian Constitution Act 1900 (UK)

Question 2

What does the Australian Constitution outline?

Answer 2

How Australia is governed, and is the fundamental law of Australia.
- Separation of powers
- Structure of Cth parliament
- law-making powers, shared between states
- high court

Question 3

How can the constitution be changed?

Answer 3

Referendum

Question 4

What are the tree types of rights?

Answer 4

1. Express rights
2. Implied rights
3. Structural protections

Question 5

What are express rights?

Answer 5

Rights that are explicitly stated (entrenched) in the Australian Constitution

Question 6

What are the 5 express rights?

Answer 6

1. Right to freedom of religion
2. Right to trial by jury for indictable commonwealth (federal) offences
3. Right to just terms for compulsory acquisition of property
4. Right to free interstate trade and commerce
5. Right to not be discriminated against by Commonwealth on basis of state where you reside.

Question 7

What does the right to freedom of religion entail?

Answer 7

Limited right to practice chosen religion and express religious beliefs
Commonwealth parliament cannot establish a national religion

Question 8

What does right to trial by jury for indictable Commonwealth offences entail?

Answer 8

• Only right to jury for federal offences, not summary or indictable offences against the state
  (is a commonwealth right for legal rep though)

Question 9

What does right to just terms for the compulsory acquisition of property entail?

Answer 9

The Commonwealth can forcibly possess your property with market rates, for a purpose for which it has power to make laws.

e.g possess your house to extend an airport

Question 10

What does the right to free interstate trade and commerce entail?

Answer 10

Trade between states must be free.
e.g Taxes cannot be posed on goods moving from Victoria to NSW

Question 11

What does the right to not be discriminated against by Commonwealth on basis of state where you reside entail?

Answer 11

Australians cannot be subject to laws that discriminate against them based on where they live

e.g WA cannot be subject to a law that would make them in a worse position than if they were from Victoria

Question 12

What are the strengths of the Constitution upholding rights?

Answer 12

• Cannot be changed unless through referendum
• All rights protected are fully enforceable through High Court, any breach can be declared invalid
• High court can interpret meaning of words from Australian Constitution, keep pace with changes in community values.

Question 13

What are the weaknesses of the Constitution upholding rights?

Answer 13

• Hard to change due to referendum process, rights may lag behind community attitudes.
• Very few rights expressly protected, limited in scope
• Expensive and time-consuming, cannot be interpreted or declared invalid until case brought to High Court.

Question 14

What are implied rights?

Answer 14

Suggested but not directly expressed rights.

Question 15

Who can interpret constitution for implied rights?

Answer 15

Only High court can interpret words of the constitution.

Question 16

Implied rights:

What does the High court need to decide?

Answer 16

Some cases may have to interpret whether Constitution intended to protect certain rights.

Question 17

What are the implied rights?

Answer 17

Right to freedom of political communication

Question 18

What does the implied right to freedom of political communication entail?

Answer 18

• Right to freely discuss and debate political issues
• Constitution does not explicitly state Australians have right to do so
• High court has decided that freedom is implied.

Question 19

What is the line in the constitution that the implied right of freedom of political communication arise from?

Answer 19

Systems of representative and responsible government imply right to freedom to discuss political matters.

Question 20

What are structural protections?

Answer 20

Frameworks that exist in the Constitution to indirectly safeguard our rights.

Question 21

Why do we have structural protections?

Answer 21

Writers of Constitution believed best way to protect individual rights was to ensure a responsible and representative government.

Question 22

What are examples of structural protections?

Answer 22

• Separation of powers
• Bicameral parliament
• Responsible government
• Representative government

Question 23

What does separation of powers mean?

Answer 23

Structural protection, powers are shared amongst judiciary, legislature and executive.

Question 24

What does bicameral parliament mean?

Answer 24

Two houses of Commonwealth parliament

Question 25

What does responsible government mean?

Answer 25

Parliament are accountable for their actions

Question 26

What does representative government mean?

Answer 26

Parliament must be elected by the people.

Question 27

Separation of powers:

Judiciary meaning

Answer 27

Power to make judgements on the law

Question 28

Separation of powers:

Executive government

Answer 28

Power to put law into action

Question 29

Separation of powers:

Parliament’s role

Answer 29

Power to make and change law

Question 30

What do the structures ensure?

Answer 30

Make it difficult for one institution to oppress or restrict rights of Australia.

Question 31

How is the Australian constitution effective in protecting rights?

Answer 31

• express rights entrenched in Constitution
• Any laws breach con. rights challenged in High court
• Borad structural protections, rights indirectly protected through system of government
• Implied freedom shows rights can still be interpreted/clarified by court.

Question 32

How is the Constitution ineffective at protecting rights

Answer 32

• Difficult to add more express rights (may lag behind societal changes)
• Very few express rights, limited in scope
• Expensive and time-consuming to determine whether rights exist or have law declared invalid.