Sac 4

Question 1

Express/Explicit Rights

Answer 1

Rights that are expressly referred to in a constitution, bill of rights or similar document. Some express rights are entrenched in a constitution. This means they cannot be easily changed by an Act of parliament. Express rights are also referred to as explicit rights.

Question 2

Freedom of religion

Answer 2

Freedom of religion- S 116 of the constitution provides that the Commonwealth Parliament cannot pass a law which establishes a state religion, imposes any religion observance, prohibits the free exercise of any religion or requires a religious test as a requirement. This right is only effective to the extent that it restricts the power of the Commonwealth Parliament with respect to religion but it does not apply for the states.

Question 3

Trial By Jury

Answer 3

Trial By Jury- S80 of the constitution state that there must be a jury trial for indictable Commonwealth offences. The High Court found that a decision of a jury must be unanimous. However, S80 provides only a limited right to trial by jury for two reasons. These are that most indictable offences are crimes under state law, and S80 only applies to Commonwealth offences. Also the High Court has ruled that indictable means ‘crimes tried on indictment’. Therefore, the federal government can avoid S80, and avoid a jury trial declaring that serious offences are summary offences rather than indictable offences tied on indictment.

Question 4

Discrimination on the basis of state

Answer 4

Discrimination on the basis of state- Under S117 of the Constitution it is unlawful for state and Commonwealth governments to discriminate against someone on the basis of the state in which a person resides.

Question 5

Interstate trade and commerce/freedom of movement

Answer 5

Interstate trade and commerce/freedom of movement- Under S92 of the constitution, interstate trade and commerce shall be free. The right prevents parliament from treating interstate trade differently from trade within a state. It provides freedom of movement between the states without burden.

Question 6

Acquisition of property on just terms

Answer 6

Acquisition of property on just terms- Under S51 the Commonwealth must provide just terms when acquiring a property. This section applies only to the Commonwealth Parliament and not the states. (eg airports and national parks). However the high court had found that S51 can apply to state legislation that is passed under a Commonwealth funding agreement.

Question 7

Implied Right

Answer 7

rights that are not expressly referred to but are read into a constitution by implication

Question 8

Implied right of political communication

Answer 8

-Australian Capital Television v the Commonwealth - Commonwealth legislation banned all political advertising in the media in the lead up to an election. The High Court found it was invalid as it overrode an implied constitutional right to freedom of political communication. Political communication in linked to the notion of Representative government, as it can only operate properly if there was freedom for people to communicate about political issues. Otherwise people would not be fully informed when voting.

Question 9

Structural protection of rights

Answer 9

Separation of powers
Representative government
Responsible government
The Referendum process
The composition of the High court
Bicameral system of parliament

Question 10

Separation of Powers

Answer 10

Separation of Powers: Refers to the notion of keeping the three arms of power, the legislative, executive and judicial power, separate in different bodies such as parliament, cabinet and the courts. This prevents power from being concentrated in one body and helps to protect individual rights by providing checks and balances on the power of the Commonwealth Parliament. Each of the arms of the Commonwealth acts as a check on the actions of the other arms, which helps to prevent an abuse of power.

Question 11

Representative Government

Answer 11

Representative Government: Is specifically described by the text and structure of the Constitution. Section 7 provides that the senators for each state shall be directly elected by the people, and section 24 provides the same for the House Of Representatives. Direct election by the people of their political representatives gives the people the right to expect that those representatives will represent their needs in parliament as much as possible.

Question 12

Responsible Government

Answer 12

Responsible Government: protects rights by providing that the power of the government is exercised by an elected person and elected people who are responsible to the parliament and therefore indirectly to the electors. S53 gives legal recognition for the principle of responsible government. The notion of responsible government therefore protects the rights of citizens to be governed by a government abusing its power.

Question 13

The Referendum process

Answer 13

The Referendum process: is provided by section 128 and protects rights by making sure that people are entitled to individual opinion when it comes to changing to Constitution.

Question 14

The composition of the High Court

Answer 14

The composition of the High Court: is a means of protecting individual rights, as it is a way of rectifying injustices that are created by legislation that may be unconstitutional. Judges also can interpret the Constitution as needs arise, create implied rights through the structure and text of the constitution, and decisions of past cases create a precedent for all courts and Parliament, which cannot be overridden by legislation.

Question 15

Strengths of the protection of Rights

Answer 15

Express rights cannot be changed unless through a referendum; that is, with the support of the community.

The implied right of freedom of political communication has been found to be contained in the Constitution, showing that rights can be declared and clarified by the High Court when needed to preserve justice

The Courts can interpret legislation and the constitution in a timely fashion as the need arises to avoid injustices.

Leaving most rights to the legislators to protect means that they can be changed easily as the need arises

Question 16

Weaknesses of the protection of Rights

Answer 16

Rights are contained in a constitution are difficult to change due to the referendum process. Rights may law behind when attitudes change and technology advances with time

Very few rights are protected under the constitution

The rights that are protected are limited in scope (how effective a right is); eg many rights only apply to the Commonwealth Parliament and ont the state parliaments, and some rights are narrow, such as trial by jury

The needs of minority groups may not be heard by the government and may not be catered for with our a bill of rights

Question 17

Similarities with South Africa

Answer 17

• They both have rights entrenched in the Constitution and also have some similar rights; including freedom of religion.
• Both Constitutional Parliament has the power to change or amend the offending act.
• Rights can also only be altered, removed or added by amending the Constitution,
• Both are protected by the principle of separation of powers, which keeps check and balances on the power of government.

Question 18

Differences with South Africa

Answer 18

• South Africa has an extensive list of express rights whereas Australia only has 5
• When bringing a case to the High Court in Australia the person bringing the case must be a person of standing, they must be directly affected, however in South Africa they do not need to be directly affected to bring the case to the High Court.
• To change Australia’s Constitution there must be a successful referendum whereas in South Africa they do not need a referendum instead the amendment must be passed by two thirds of the National Assembly members and then supported by at least 6 of the 9 provinces in the -

-Nation Council of provinces.
South African in addition to declaring legislation invalid the courts can make another appropriate remedy, such as award damages where the rights have been infringed, whereas the approach in Australia is to focus on declaring the legislation either valid or invalid.

Question 19

Description on Roach Case

Answer 19

Roach was a Victorian woman serving a term of imprisonment. Roach challenged the validity of amendments to the Commonwealth electoral act which prohibited persons who were serving a term of imprisonment from voting in federal elections. The case was heard in the High Court which held that the amendments were inconsistent with the principle of representative government established by the constitution. The court held that sections 7 and 24 of the constitution required by the houses of parliament to be ‘directly chosen by the people’ and this right may only be limited for a substantial reason. The decision was significant because it upheld the structural protection of the right for parliament to be directly chosen by the people, as well as the right to representative government. This affirmed that there is a constitutional yet limited right to vote for members of the Australian community, which is protected by the structures of representative government. However, it can be limited to circumstances necessary to preserve representative government.