rights n stuff Flashcards
constitution definition
foundational law that establishes a nation’s system of government. rules about how laws are made, which parliaments can make legislation about what.
express rights definition
-explicitly stated in constitution.
-entrenched= only can be changed with referendum. fully enforcable,
-can be challenged if the party has standing (person is genuinely affected). costs a lot to challenge.
express rights
51-right to just terms: taking land / possessions.
80: right to trial for commonwealth indictable offences.
92: free interstate trade
116: freedom of religion
117: no discrimination based on state of residence.
implied rights definition
-not explicitly stated, high court ruled it is intended based on meaning of words. fully enforceable,
-challengeable (with standing)
structural protections definition
systems + mechanisms set up by constitution that indirectly protect human rights. these are:
-separation of power
-representative government
separation of powers definition
ensure no abuse of power by bodies involved in creation of laws and administration of justice.
separation of powers
-legislative: ability to make laws (parliament)
-executive: administer laws+ conduct business of gov. eg taxes running police force, granting visa. (given to crown, exersised by ministers of certain departments.
-judicial: resolve criminal + civil disputes. impose sanctions, award damages (courts)
supposed to be separate, overlap for ministers who excersise and are mp
judical kept separate. judges dont make laws, ministers dont judge (contempt of court). judges are independent when reveiwing breaches by parliament
representative government
-law makes pass laws that protect rights valued by community.
-regular elections= remove gov with human rights breach legislation
-regular elections: fear of losing office, make good laws.
-requires majority of population to participate in elections. parliament has limited ability to take away right to vote.
strengths of constitutional protections
strengths:
-entrenched: referendum
-implying rights: high court finds implied rights
- enforceability: by high court
- cannot be overridden: protected
- separation of powers: judges not politics, judge check laws
-rep gov- law protecting rights: changes as society changes
- rep gov - fear of losing office: prevent laws made that breach.
weaknesses of constitutional protections
weaknesses:
-limited express rights: limits law making powers of parliament.
- narrow application: eg section 80 only applies to commonwealth indictable offences. most are state
- need for challenge: party with standing pays a lot for legal action, time consuming. some cant afford.
-remedies: cannot award damages for law breaching rights.
- advisory opinions: high court doesnt give advice / opinons.
- rep gov- protect minorities: not effective to protect minorities, some laws may be popular with some, or unknown (meaning less fear of losing office for passing such legislation)
vchrr (charter of human rights and responsibilities) and features of operation
-ensures new laws reviewed
-outlines basic human rights
features of operation:
-minister introducing law must outline compatibility. if breaches:
–debated openly in parliament
–law makers consider if breach is justified.
-doesnt create right to legal action.
-protects indirectly:
–promoting new laws in accordance.
–ensures gov bodies act in accordance with rights.
examples of rights:
-equality before law
-protection from torture.
parliament can override charter, pass whatever they want.
strengths of vchrr
-new laws + human rights: human rights issues debated publicly
-debate: complex issues debated + resolved in public way, by democratically elected law makers.
weaknesses of vchrr
-no new legal claims: cannot start legal action for right breaches under vchrr.
-only vic: no impact on laws in commonwealth parliament.
-can be overridden: requires law makers to consider rights, not follow.
