express rights

Question 1

What are the means by which Australian Constitution acts as a check of Parliament in law-making?

Answer 1

• the role of the High Court
  in protecting the principle of representative government
• the separation of the legislative, executive and judicial powers
• the express protection of rights

Question 2

What is an express right?

Answer 2

a right that is specifically stated in the Australian Constitution

Question 3

What is the purpose of express rights?

Answer 3

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 4

What are the express rights?

Answer 4

1. right to freedom of religion
2. right to free interstate trade & commerce
3. right of acquisition of property on just terms
4. right to trial by jury for Cth offenses
5. right not to be discriminated on the basis of the state where you reside

Question 5

The right to freedom of religion

Answer 5

SECTION 116: prevents Commonwealth from making laws establishing state religions, imposing a religion or prohibiting the exercise of a religion.

Question 6

The right to free interstate trade & commerce

Answer 6

SECTION 92: prevents the Commonwealth treating trade within a state as different to between states.

Question 7

right to receive ‘just terms’ when property is acquired by the Commonwealth

Answer 7

SECTION 51: means the Commonwealth must pay fair and reasonable compensation for property acquired.

Question 8

right to trial by jury for indictable Commonwealth offences

Answer 8

SECTION 80: means there must be a jury for indictable Commonwealth offences under criminal law.

Question 9

right to not be discriminated against on the basis of the state where you reside

Answer 9

SECTION 117: means it is unlawful for governments to impose laws that discriminate against people on the basis of the state in which they were born.

Question 10

Strengths of express protection of rights

Answer 10

1. Express rights impose limits on parliament when making law in certain areas.
2. Express rights are entrenched and cannot be removed or amended without a successful referendum.
3. When a matter is brought before it, the High Court can act swiftly in declaring a law to be beyond parliament’s power (ultra vires) and thus invalid.
4. 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 11

Weaknesses of express protection of rights

Answer 11

1. The rights that are protected are limited in scope.
2. Given referendums are so difficult to pass, the express rights in the Constitution have not increased in number or been amended since Federation. This reduces the checks on government because there is unlikely to be any additional rights added to act as a check on parliament in the future.
3. For the High Court to hear a challenge against actions of parliament regarding express rights, a case must be brought to court (and this is expensive and time-consuming).
4. The express protection of rights does not prevent the Commonwealth Parliament from passing the law.