Sac 3

Question 1

Section 51-31 - The acquisition of property on ‘just terms’

Answer 1

S51(xxxi) of the Constitution states that any acquisition of property by the c/w from any state or person must be on ‘just terms’. The c/w is only able to take or acquire property for a purpose or area in which it has power to make laws e.g. National parks and roads. Furthermore, it is required to provide compensation that is reasonable and fair in the circumstances. This section does NOT apply to acquisition by states. This protects citizens from unjust and unreasonable acquisition of property by the c/w

Question 2

Section 80 - Trial by jury

Answer 2

S80 of the Constitution states that “the trial of indictment of any offence against any law of the c/w shall be by jury…”. This Section only applies for c/w offences. Furthermore, jury trials are mandated only for trial indictment. Hence this section only provides a limited right of the states (criminal law is a residual power), which are not bound by this section, and the c/w could overcome this restriction by stating that a crime is a summary offence, where no jury is needed. The HC has also determined that jury verdicts need to be unanimous. Thus the Right to fair trial is protected.

Question 3

Section 92 - Freedom of interstate trade and commerce

Answer 3

S92 upholds an economic right for freedom of interstate trade by stating, “trade, commerce and intercourse among states… shall be absolutely free”. The HC has interpreted this section and it is currently thought to mean that neither c/w nor state parliaments can pass laws that discriminate against interstate trade or commerce of a state against other states. Additionally, the part of the section declaring, “intercourse among states shall be free” has been interpreted to protect the freedom and travel between states. It allows states to engage in fair trade without commonwealth interference.

Question 4

Section 116 - Freedom of religion

Answer 4

S116 protects the right of freedom of religion in 4 ways;
“The c/w shall not make any laws for establishing religion”
“Or imposing any religious observance”
“Or for prohibiting the free exercise of religion”
“No religious test shall be required as a qualification for any office or public trust under the c/w”
-The effect of S116 is to prevent the c/w from using any of its law-making powers in a way that would give one religion an advantage over another, or to force people to observe a particular religion, or to disallow them from observing a religion.
-It has also been held to protect the right of having no religion and prevents the commonwealth from legislating in any way that restricts the freedom of religion.

Question 5

Section 117 - Freedom from interstate discrimination

Answer 5

S117 gives protection to AUS citizens from being discriminated against on the basis of the state they live in.
-This restriction is thought to apply to both c/w and state parliaments (not stated in the section). One example of the application of this Section is where a resident of VIC was on holidays in WA could not be subject to WA laws if it put them in a worse position than the equivalent VIC law

Question 6

Explain the Australian Capital Television PTY LTD v. Commonwealth (1992) HCA case and the significance it had on the protection of rights

Answer 6

In 1991 the Hawke Govt passed the Political Broadcasts and Political Disclosures Act (1991) which banned all political advertising during election campaigns, however political discussion and current affairs programs were still allowed and meant that TV and Radio stations had to provide equal free time for political parties to convey their policies to voters.

• The aim of the Act was to prevent political parties with large amounts of money being the only ones that could advertise.
• The AUS Capital Television broadcasting agency challenged the constitutional validity of the act and argued that the Constitution contained an implied right of Freedom of Political Communication, and this act infringed this right. The High Court decided that in order to be informed before voting, there needed to be political advertising, and as well as this, a representative government under S7 and S24 needed to be able to communicate with the people. Therefore the Commonwealth act was declared invalid and politicians were free to advertise. The significance of this case was the the High a Court had found an implied right to freedom of political communication on political matters. This is significant because it was the first implied right to be found, and is still the only implied right.