Constitutional rights Flashcards
What is the name of the Australian Constitution (Act)
Commonwealth of Australian Constitution Act 1900 (UK)
What does the Australian Constitution outline?
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
How can the constitution be changed?
Referendum
What are the tree types of rights?
- Express rights
- Implied rights
- Structural protections
What are express rights?
Rights that are explicitly stated (entrenched) in the Australian Constitution
What are the 5 express rights?
- Right to freedom of religion
- Right to trial by jury for indictable commonwealth (federal) offences
- Right to just terms for compulsory acquisition of property
- Right to free interstate trade and commerce
- Right to not be discriminated against by Commonwealth on basis of state where you reside.
What does the right to freedom of religion entail?
Limited right to practice chosen religion and express religious beliefs
Commonwealth parliament cannot establish a national religion
What does right to trial by jury for indictable Commonwealth offences entail?
- Only right to jury for federal offences, not summary or indictable offences against the state
(is a commonwealth right for legal rep though)
What does right to just terms for the compulsory acquisition of property entail?
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
What does the right to free interstate trade and commerce entail?
Trade between states must be free.
e.g Taxes cannot be posed on goods moving from Victoria to NSW
What does the right to not be discriminated against by Commonwealth on basis of state where you reside entail?
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
What are the strengths of the Constitution upholding rights?
- 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.
What are the weaknesses of the Constitution upholding rights?
- 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.
What are implied rights?
Suggested but not directly expressed rights.
Who can interpret constitution for implied rights?
Only High court can interpret words of the constitution.
Implied rights:
What does the High court need to decide?
Some cases may have to interpret whether Constitution intended to protect certain rights.
What are the implied rights?
Right to freedom of political communication
What does the implied right to freedom of political communication entail?
- 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.
What is the line in the constitution that the implied right of freedom of political communication arise from?
Systems of representative and responsible government imply right to freedom to discuss political matters.
What are structural protections?
Frameworks that exist in the Constitution to indirectly safeguard our rights.
Why do we have structural protections?
Writers of Constitution believed best way to protect individual rights was to ensure a responsible and representative government.
What are examples of structural protections?
- Separation of powers
- Bicameral parliament
- Responsible government
- Representative government
What does separation of powers mean?
Structural protection, powers are shared amongst judiciary, legislature and executive.
What does bicameral parliament mean?
Two houses of Commonwealth parliament
What does responsible government mean?
Parliament are accountable for their actions
What does representative government mean?
Parliament must be elected by the people.
Separation of powers:
Judiciary meaning
Power to make judgements on the law
Separation of powers:
Executive government
Power to put law into action
Separation of powers:
Parliament’s role
Power to make and change law
What do the structures ensure?
Make it difficult for one institution to oppress or restrict rights of Australia.
How is the Australian constitution effective in protecting rights?
- 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.
How is the Constitution ineffective at protecting rights
- 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.
