express rights

Question 1

what is an express right

Answer 1

explicitly stated (or entrenched) in the wording of the constitution and can only be altered or removed through a successful referendum

Question 2

5 express rights

Answer 2

section 51 (xxxi)
section 80
section 92
section 116
section 117

Question 3

section 51 (xxxi) (cth only)

Answer 3

the right to receive just terms when property is acquired by the commonwealth

Question 4

strengths of section 51

Answer 4

• the commonwealth cannot pass a law taking a person’s or company’s land or possessions unless fair and reasonable compensation is provided

Question 5

weaknesses of section 51

Answer 5

• does not prevent the commonwealth from acquiring property from australian citizens
• there is no specification or statement on what constitutes ‘just terms’, potentially leading to some unsatisfactory outcomes for landowners
• does not apply to the states

Question 6

section 80 (cth only)

Answer 6

the rights to trial by jury for commonwealth indictable offences

Question 7

strengths of section 80

Answer 7

• applies for indiv who have been charged with offences such as terrorism, people smuggling, drug importation, fraud
• the commonwealth cannot legislate to have indictable offences tried by a judge alone, which enhances a fair trial

Question 8

weaknesses of section 80

Answer 8

• many criminal offences are created by state laws (e.g. crimes act 1958 (vic)) and this section does not apply to the states

Question 9

section 92 (cth and state)

Answer 9

the right to free interstate trade and commerce

Question 10

strengths of section 92

Answer 10

• both cth and state parl cannot pass laws that restrict free movement of goods or indiv between states

Question 11

weaknesses of section 92

Answer 11

• HC stated that laws that restrict interstate movements of people without ‘discrimination’ are acceptable
• a law that has some other legit purpose, but has the side effect of restricting movement between states might be valid

Question 12

section 116 (cth only)

Answer 12

the right to freedom of religion

Question 13

strengths of section 116

Answer 13

• the cth parl cannot pass a law that imposes or bans a religion
• a person cannot be denied a position in the cth parl or related positions because of their religious beliefs

Question 14

weaknesses of section 116

Answer 14

• does not apply to the states
• law that has the effect of forcing a person to do something their religion prohibits does not necessarily breach s116

Question 15

section 117 (cth and state)

Answer 15

the rights not to be discriminated against based on your state of residence

Question 16

strenghths of section 117

Answer 16

• the cth parl cannot pass a law that treats victorians less favourable than NSW citizens
• states cannot pass laws that impose a burden of a person because they live in a different state

Question 17

weaknesses of section 117

Answer 17

• some laws that legislate upon residents of different states in a restrictive manner may be acceptable
• relatively few HC cases have involved the interpretation of s117 and, as it results, it remains unclear which laws would or would not violate s117