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Legal Studies > rights > Flashcards

rights Flashcards

1
Q

lesson one

define right

A
  • a moral or legal entitlement to have or do something
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2
Q

lesson one

what are the five fundmental freedoms that the cth department of social services states that australians are entitled to?

A
  • freedom of speech
  • freedom of association
  • freedom of assembly
  • freedom of religion
  • freedom of movement
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3
Q

lesson one

what is the freedom of speech?

A
  • to speak / write about any topic, including criticising the government
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4
Q

lesson one

what is the freedom of association?

A
  • to join any lawful group or organisation to discuss & debate views
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5
Q

lesson one

what is the freedom of assembly?

A
  • to meet with other ppl in public or private, including peaceful protests
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6
Q

lesson one

what is the freedom of religion?

A
  • to practice any lawful religion & not have religion imposed upon them by the Cth govt.
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7
Q

lesson one

what is the freedom of movement?

A
  • to move b/w states / territories of Australia
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8
Q

lesson one

what are the three ways in which rights are protected in Australia?

A
  • statute law
  • common law
  • constitution
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9
Q

lesson six

what does the australian constitution currently outline on rights?

A
  • aus constitution = struct protection and capacity to develop implied rights h/w few express rights outlined.
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10
Q

lesson six

why would changing the constitution be difficult?

A
  • each change must be supported by a double majority in a referendum
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11
Q

lesson six

how could there be an increased protection protection of minority groups?

A
  • amending existing legislation
  • dev govt policy to provide a range of services –> incr protection
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12
Q

lesson six

who has there been pressure to improve rights of?

A
  • indigenous Aust
  • asylum seekers
  • ppl accused of terror-related crimes
  • ppl w/ disabilities
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13
Q

lesson six

why is there a limit to providing greater access to legal aid?

A
  • limited b/c $ & time
    –> incr funding to legal aid, educ for min groups
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14
Q

lesson six

what are the arguments in agreement for adopting a nation bill of rights in Aust?

A
  • strengthen the protection of rights in Aust by clearly stating the basic rights of all cit
  • make govts in australia more accountable for the improvement of rights leg & provision of services to uphold the rights
  • improve aust international image
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15
Q

lesson six

what are the arguments against australia adopting a national bill of rights?

A
  • basic human rights are alreadt protected by acts of parl
  • ppl who feel their rights are X protected by the law are able to try to influence the govt ti change the law = pol pressure
  • aust already adopted & ratified man major internat treaties & optional protocols that protect a vast array of human rigths
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16
Q

lesson seven

what is the background of the Dietrich v The Queen case?

A
  • D charged w/ drug offences relating to possession & trafficking
  • D = unable to afford leg rep & state-fund rep = X supplied –> unrep in trial
  • applied for leg. aid = unsucc b/c X in approp time.
  • trial –> D = guilty
  • –> appealed to SC (coa) = dismissed
  • –> apppelaed to HC
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17
Q

lesson seven

what was the issue that Dietrich argued?

A
  • a person charged with an indictable offence was entitled to legal representation at the state’s expense
  • the failure of the trial judge to appoint a lawyer resulted in a miscarriage of justice
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18
Q

lesson seven

what was the high court decision in the D v Q case?

A
  • D’s HC appeal = successful
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19
Q

lesson seven

what did the high court hold within its decision?

A
  • the courts possess undoubted power to stay criminal proceedings that will result in an unfair trial
  • the power to grant a stay necessarily extends to a case in which representation of the accused by counsel is essential to a fair trial
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20
Q

lesson seven

what was the impact of the D v Q case?

A
  • access to leg rep is fundamental to the effective operation of the criminal justice system
  • govt respon. to provide sufficient funds for legal ervices & their failures to do so may result in an idefinite stay in trials for serious criminal offences
  • due to case legal aid will be compelled in some cases that would otherwise X be supported
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21
Q

lesson seven

what were the supporting attitudes of the D v Q case?

A
  • there was a gain for accused ppl who cannot afford legal representation
  • recognises Aust HR respon under UN conventions
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22
Q

lesson seven

what was the unapproving attitudes of the D v Q case?

A
  • concerns as to houe this would affect funds available to legal aid services.
  • concerned it would clog the system w/ accused ppl pleading X guilty rather than guilty
  • concerns that lengthy or permanent stays on criminal trials would occur for those charged w/ serious crimes
  • concern that granting of bail to these accused would lead to a lack of confidence in the leg ayatem w/n the community
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23
Q

lesson two

who is common law established by?

A
  • common law est by state and federal courts through precedent
24
Q

less two

what are examples of rights upheld or established by courts?

A
  • right to silence
  • right to a fair trial to the extent that a court may stay (stop) a trial if it will mean a unfair trial for the accused
  • right to freedom of movement
  • righ to limited freedom of speech
25
Q

less two

what does ultra vires mean?

A
  • courts can also be protected by using their power to declare Acts of Parliament invalid
  • this means that the Act is deemed by the court to have been made outside parliament’s law-making powers (ultra vires)
26
Q

lesson two

what does codification mean in regards to parliament?

A
  • precedents regarding rights can also be codified (confirmed) when parliament passes legislation that reinforces the principle of the precedent
    e.g. Native Title Act 1983 (Cth) codified the common law principles from the Mabo case
27
Q

lesson two

what does abrogation in regards to parliament mean?

A
  • parliament is also able to abrogate (cancel) rights est. in common law
28
Q

lesson two

what rights is parliament not able to override?

A
  • rights est, by the HC when they involve the interpretation of the Constitution.
29
Q

lesson two

what are the strengths of rights protection under common law?

A
  • courst & judges are independent of parliament & can est. precedent free from political pressures
  • courts & judges able to make decisions to est. rights in areas where the parliament has not
  • courts are able to infer rights w/o the need to consider how those rights may need to be limited
  • courts able to highlights to parliament gaps in the law the protect rights, which may encourage parliament to change the law to further protect rights
  • courts have been able to protect rights & parliament has X not overly interfeed w/ those common law rights by abrogating them
30
Q

lesson two

what are the weaknesses of rights protection under common law?

A
  • common law rivhts are not always easy to define or identity as opposed to statutory rights
  • courts must wait for a case to come before them to be able to declare the existence of rights
  • parliament, as the supreme law-making body, can abrogate common law rights
  • often judges are reluctant to recognise certain rights, leaving it up to parliament to protect those rights
  • judges are limited in applying the law to the case that is befroe them. they cannot simply ‘create rights’ in any dispute
31
Q

lesson three

what is the most important document in Australia’s legal system?

A
  • the Australian constitution
32
Q

lesson three

what does the Australian constitution not contain?

A
  • a bill of rights which is a comprehensive list of the basic rights of Australian ppl.
33
Q

lesson three

how does the Australian constitution protect rights?

A
  • expressed rights
  • implied rights
  • structural protection of rights
34
Q

lesson three

what are express rights?

A
  • express rights are explicitly stated in the wording of the Australian constitution
35
Q

lesson three

how can express rights be changed or removed?

A
  • only be changed or removed by a referendum. this differs from rights protection under statute law & common law, which can be altered at any time by parliament passing legislation
36
Q

lesson three

define referendum

A
  • requires a proposal to be approved by the Australian ppl in a public vote by a double majority
37
Q

lesson three

what are the five express rights outlined in the consititution?

A
  1. one will recieve ‘just terms’ when property is acquired by the Cth: fair & reasonable compensation for any land the govt compulsorily acquires
  2. trial by jury for indictable Cth offences
  3. free interstate trade & commerce: restricts tax in items moving from state to state
  4. freedom of religion: cannot declare a national nor prohibit a religion
  5. not be discriminated against on the basis of the state in which you live: an exception is only allowing residents to vot in a state election
38
Q

lesson three

what are implied rights?

A
  • implied rights are not only explicitly stated in the wording of the Australian constitution, but are considered to exist by the HC
  • such rights stem from HC interpretation of the express words w/n the constitution
  • once a right has been implied by the HC it may be made clearer or confirmed in later cases
39
Q

lesson three

what are structural rights?

A
  • rights w/n the structure of the Australian constitution
40
Q

lesson three

what are the two key parliamentary principles?

A
  • representative govt
  • separation of powers
    –> these principles indirectly protect some rights of Aust ppl
41
Q

lesson three

what is a representative govt?

A
  • members of parliament must be elected by the ppl to make laws on their behalf
  • senate: members = X elected by ppl
  • HOR: members = directly chosen by ppl

t/f there is a right to be governed by representatives of the ppl

42
Q

lesson three

what are the three powers of the legal system and what is ensured of them by the principle of separation of powers?

A
  • legislative (law-making by parliament)
  • executive (adminstering the law of govt)
  • judicial (courts applying the law)

remain separate & belong to diff. bodies to ensure that there are checks & balances. no single body has the power to make the law, administer the law & apply the law.

t/f there is a right of citizens to be protected from undue interference by govt

43
Q

lesson six

what are the three possible reforms suggested to adequatey protect the right of individuals an groups?

A
  • introducing a National Charter or Bill of rights
  • Amending legislation & systems to provide incr. protection to minority groups
  • incr. the availability of legal aid & assistance
44
Q

lesson six

what is a statutory bill of rights?

A
  • the Cth parliament would pass legistlation which sets out the basic rights of the Aust ppl
  • this approach would be takedn b/c procress of changing the consititution = v. difficult b/c each change must be supported by a double maj in a ref
45
Q

lesson six

what could be done to address the issue of courts being limited?

A
  • more funding should be allocated to lega; aid to undertake further civil matters invloving the infringment of rights
46
Q

lesson eight

what is the background / facts of the Mabo case?

A
  • MC = test case before HC
  • 1981= launch test case relating to Ab. native title
  • 1982 = writ –> HC
47
Q

lesson eight

what did the plaintiffs claim in the MC?

A
  • claimed ownership of their ancestral lands & challenged the doctrine of terra nullius
48
Q

lesson eight

why did and what help did the plaintiffs of the MC recieve?

A
  • facing combined resources of QLD & Cth govt
  • rely on donations from fam & friends & lawyers = pro bono
49
Q

lesson eight

what was the issue of the MC?

A
  • it had to be determined whether the principle of terra nullius was vaild
  • it had to be determined whether native title over the land (native ownership) existed.
50
Q

lesson eight

what was the outcome of MC in 1990?

A
  • claim denied
    –> appeal to HC
51
Q

lesson eight

what courts dealt with the MC case?

A
  • HC ordered the SC of QLD hear case on its behlaf (1986)
52
Q

lesson eight

what was the outcome of the appeal in the HC for the MC?

A
  • all judges but one agreed that there was a common law right to native title, indigenous ppl have rights to land & these existed prior to colonisation
  • this native title should continue in all areas where indigenous ppl have maintained their connection to the land
53
Q

lesson eight

what was the impact on rights from the MC?

A
  • the Cth parl. codified the principle of native title in the Native Title Act 1993 (Cth)
  • this Act est a Native Title Tribunal
  • gave fed. courts a central role in managing native title claims
54
Q

lesson eight

what was the negative response to the HC decision in the MC?

A
  • section of the mining & farming industries reacted angrily to the decision & urged the Cth parliament to abrogate the decision
55
Q

lesson eight

what was the positive response to the Hc decision in the MC?

A
  • indig. land councils & other indig organ lobbied the govt to protect the native title decision
56
Q

lesson eight

what did the 2004 survey reveal about the public opinion on the MC decision?

A
  • 25% = felt change had X gone far enough
  • almost twice thought chnage had gone too far

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