Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

legal > legal AOS2b > Flashcards

legal AOS2b Flashcards

0
Q

What are statutory rights?

A

Statutory rights are rights protected by an act through parliament
Eg. Equal opportunity act

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
1
Q

What is express rights?

A

Express rights are the rights written in the constitution and can only be changed with a successful referendum

  • freedom of religion
  • acquisition of property on just terms
  • trial by jury
  • free interstate trade + commerce
  • freedom of interstate discrimination
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What is common law?

A

Common law is judge made law or case made law apposed to legislation or statute law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What are entrenched rights?

A
  • rights stated in the constitution
  • can only be changed with a referendum
    eg. Freedom of religion
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What is structural protection?

A

An indirect protection of the rights of Australians by preventing the abuse if power
REPRESENTATIVE GOVERNMENT
-Both houses are elected by the people
-Protects the rights of people to be governed by the people of their choosing
-Government cannot continue without support from the people.
RESPONSIBLE GOVERNMENT
-Power of the government is exercised by elected people who are responsible to parliament therefore responsible to the people
-If the government looses support, the lower house must resign
➡️Protects against the government abusing power

SEPARATION OF POWERS

  • The separation of powers ensures that no one body has control over the functions of the legal system
  • Ensures no one body can make laws, administer laws or rule on it’s legality
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Freedom of religion S.166

A

Commonwealth cannot pass a law which:

  • Establishes a state religion
  • Imposes any religious observance
  • Prohibits any free exercise of any religion
  • Requires a religious test as a requirement for holding any commonwealth office

-This restriction is oh on the commonwealth and doesn’t apply to the states

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Free interstate trade and commerce S.92

A

S.92 states interstate trade and commerce must be free

  • Prevents parliament from treating interstate trade differently from trade within a state
  • Freedom of movement between States
    eg. Restricts the imposition of Taxes on goods moving one state to another
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Discrimination on the basis of state

S.117

A

It’s unlawful for state and commonwealth to discriminate against someone die to the state they live in

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Acquisition of property on just terms

S.51

A
  • S.51 (xxxi) the commonwealth must pay fair compensation for property that is compulsory acquisition of property , independent valued will decide on what is just terms.
  • Commonwealth is only allowed to aquire property for a purpose or area which has the power to make laws
    eg: airports
  • doesn’t apply to acquisition of the states, only the commonwealth
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Trial by jury

S.80

A

S.80 there must be a jury for indictable commonwealth offences
-However it is limited as most indictable offences are crimes under state law and the right only applied to the breach of commonwealth law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What are implied rights?

A
  • Implied rights are implied in the constitution by the structure and text of the constitution
  • The night court has only found 1 implied right to freedom of political communication
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Evaluation of the constitution as a means of protecting rights - Structural protection of rights

A
  • Structural protection is very affective at protecting rights via mechanisms such as representative government, responsible government, and separation of powers
  • However, as structured protection is an indirect protection of rights, it is unclear exactly which rights are protected by the constitution. This was seen in the roach case where the high court found only a limited implied right I vote rather than a full implied right to vote
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Evaluation of the constitution as a means of protecting rights - Express rights

A
  • 5 express rights entrenched in the constitution and can only be removed or amended with a referendum
  • Strongly protected as parliament cannot change them without the peoples acceptance
  • However there are only 5, this provides limited protection. It could be argued that there should be more express rights or a bill of rights would provide greater protection
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Evaluation of the constitution as a means of protecting rights - Implied rights

A
  • High court has established one implied right in the constitution, that being to the right to freedom of political communication
  • However there is only one implied right providing limited protection and the high court is reluctant to imply further rights
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Evaluation of the constitution as a means of protecting rights - Fully enforceable

A
  • Both express and implied rights are fully enforceable by the courts, which means any legislation that infringes those rights can be ruled unconstitutional
  • Rights can be enforced through a complaints based approach
    eg. If someone believes their rights have been infringed they can take the case to the high court
  • HOWEVER, the high court must wait for a case to be brought to them by someone which is an expensive and time consuming process, which may mean an injustice isn’t corrected
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Evaluation of the constitution as a means of protecting rights - Conclusion

A

While there’s only a small number of express and implied right protected in the constitution, the strong structural protections provide effective protection against the rights of Australia

16
Q

Case relevant to the protection of rights - The Roach Case

A

ISSUE:
Whether the commonwealth could ban all sentenced prisoners from voting
LAW:
2006 act prohibits all sentenced prisoners from voting
FACTS:
-Vicki Roach was sentenced to 6 years
-She challenged the 2004 and 2006 acts
DECISION:
-Court found the 2006 act was unconstitutional
-However the court found the 2004 act which banned prisoners serving more than 3 years voting was valid
-2004 act was upheld
EFFECTS:
Commonwealth parliament couldn’t ban all sentenced prisoners from voting

17
Q

Implied rights case - Australian Capital Television and ors v. Commonwealth

A

ISSUE:
Whether commonwealth could ban all political advertising on radio and television throughout election periods
LAW:
Cth. Passed a law in 1991 which banned political adds
FACTS:
Commonwealth passed a law banning all political adds on TV and radio during election periods, but allowed parties who has members in parliament to have some free adds
High court found the law was invalid as it went against the implied right of freedom of political communication
DECISION:
Court found the law invalid as it was against the implied right of freedom of political communication
EFFECT:
Commonwealth couldn’t ban political communication of any sort

18
Q

Australia and the USA in the approach to protecting rights - Entrenched rights

A 
SIMILARITIES:
Both the USA and Australia have entrenched rights in their constitutions which can only be changed or removed by changing the constitution
DIFFERENCES:
AUS:
-Only 5 constitutional express rights 
-No bill of rights 
USA:
-Extensive lust of express rights within the bill of rights in the constitution
19
Q

Australia and the USA in the approach to protecting rights - Structural protection

A 
SIMILARITIES:
-Separation of powers 
-Representative government 
DIFFERENCES:
AUS: 
-Has responsible government 
-Cabinet ministers are elected by the people 
USA:
Doesn't have responsible government as the cabinet are elected by the president therefore they're not responsible
20
Q

Australia and the USA in the approach to protecting rights - Implied rights

A

SIMILARITIES
-both have one implied right within their constitution
-implied rights are held to exist by the high court (supreme court in the USA) in the constitution
AUS: freedom of political communication
USA: right to privacy

21
Q

Australia and the USA in the approach to protecting rights - fully enforceable

A
  • both entrenched and implied tights are fully enforceable by the courts
  • high court in AUS and Supreme Court in USA can declare legislation invalid if it infringes any right
22
Q

Australia and the USA in the approach to protecting rights - Amending the constitution

A

DIFFERENCES:
AUS: amending the constitution requires a single referendum with a double majority
USA: process is more complex and lengthy involving separate votes in each state and requiring an approval from 2/3 of congress and 3/4 of the states

legal (2 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions