Legal Studies 2.3 Flashcards
What was the impact of the Roach case on the human rights of individuals?
constitutional right for over 18 to vote protected by representative government structure in sections 7 and 24
(the High Court did not go so far as to call the right to vote an implied right).
prisoners serving under 3 years get right to vote
What was the impact of the Roach case on the legal system?
reaffirmed need for separation of powers. parliament can still legislate who can vote. high court keeps parliament in check to make sure good reason for this legislation. structure of representative government (sections 7 and 24 const) keep the parliament’s powers in check when legislating right to vote
meaning of Human Rights
Broadly speaking, basic freedoms/standards that aim to promote and uphold dignity of all people
Express Right
Rights explicitly stated in the australian constitution. (right to freedom of religion, right to freedom of interstate trace/commerce, right to freedom from discrimination on basis of state of residence, right to [jury for indicable commonwealth offences, right to just terms when property acquired by commonwealth)
Universal declaration of human rights
An international declaration made by the UN which is significant to human rights because it is aspirational and can influence parliament to enact legislation, adopted by all members of UN, inspired creation of 80+ treaties/declarations
How Statute law protects human rights
Commonwealth parliament can pass legislation that applies to or protects rights of all australians
State parliament can amend statute and charters to include further rights as society changes
Vic charter of human rights and resonsibilities.
Implied rights
Rights not explicitly stated in the constitution but implied through interpretation eg. the right to freedom of polititcal speech
how the Australian constitution protects human rights
through express rights, implied rights and structural protections
how Common law protects human rights
The high court is the guardian of the constitution and can declare an act of parliament ‘ultra vires’ (beyond plt power)
Creation of precedent for future cases (but need a test case)
Parliament cannot override a ruling by the high court on constitutional matters.
Structural protection
Structural protections are mechanisms contained in the structure and text of the Constitution designed to prevent governmental power from being concentrated in the hands of a small number of people who might abuse it.
eg. Representative government, designed to prevent governments from abusing power by making them answerable to people at elections, ensuring members of Parliament represent the views and needs of those who voted them in:
S.7 requires that the Senate be “directly chosen by the people”
S.24 states the House of Representatives must be “directly chosen by the people”
S.28 provides for three-year terms for the House of Representatives, meaning elections must occur at least every three years
S.13 means senators must face an election every six years
Victorian charter of human rights and responsibilities and how it protects human rights
Statute
Public authorities must act in compatibility with human rights
human rights taken into account when parliament makes new laws
court/tribunals need to interpret and apply law in compatibility with human rights
International declaration
??? agreement signed between nations
development of human rights (examples)
SA (1894) became first electorate in the world to give women and men equal political rights
Australia (1984) granted equal voting rights to first nations and other people by declaring mandatory voting for first nations as well.
the right to vote: nature of the right and significant events in it’s development
the right to vote: laws that apply and possible reforms
