SAC #5 (Outcome 2C) - US Constitution

Question 1

How does the US Constitution provide for the structural protection of rights? (VERY BASIC)

Answer 1

By providing for the principles of separation of powers and representative government.
DOES NOT PROVIDE FOR RESPONSIBLE GOVERNMENT.

Question 2

How does the US Constitution provide for the principle of separation of powers?

Answer 2

• The legislative, judicial and executive powers are all kept separate.
  > Allows each power to acts as a check and balance on each other.
  > Thomas Jefferson noted that the separation of powers would limit the power of government and prevent any person or group from exercising power tyrannically.

Question 3

How does the US Constitution provide for the principle of representative government?

Answer 3

• Sections 1, 2 and 3 of US Constitution requires that all members of Congress be elected by the people.
• 18th Amendment provides the right to vote to US citizens who are over 18 years old.
  > Avoids possibility of governments encroaching on the human rights of citizens.

Question 4

How does the US Constitution provide for the principle of responsible government?

Answer 4

Does not provide for responsible government because the President is elected separately and not part of Congress.
- President also selects the cabinet.
> Means they are not responsible to Congress.

Question 5

How does the US Constitution provide for express rights?

Answer 5

• They are contained in the Bill of Rights which have the first 10 Amendments to the US Constitution.
  > Congress cannot pass a law which is in conflict with the bill of rights.

Question 6

When was the bill of rights passed and what does it protect people against?

Answer 6

1789.

Protects people and groups against abuse of rights by both the federal AND state governments.

Question 7

How can rights in the US Constitution be amended?

Answer 7

Through a joint resolution of both house of Congress.

• Must have an approval of two-thirds of both houses of Congress.
• Must then be approved by three-quarters of the states (where the state legislatures usually give approval).

Question 8

List the 10 amendments in the bill of rights.

Answer 8

1. Freedom of speech, press, religion and petition.
2. Right to keep and bear arms.
3. Conditions for quarters for soldiers.
4. Right of search and seizure regulated.
5. Provisions concerning prosecution.
6. Right to a speedy and public trial.
7. Right to trial by jury.
8. Excessive bail, cruel punishment.
9. Rule of construction of the Constitution.
10. Rights of the states under the Constitution.

Question 9

Explain the 1st Amendment.

Answer 9

“Freedom of speech, press, religion and petition”.
This guarantees:
- Free speech
- Free press
- Right to peaceful assembly
- Freedom of religion and the separation of church and state, and
- The right to petition the government for a redress of grievances.

Question 10

Explain the 5th Amendment.

Answer 10

“Provision concerning prosecution”.
This guarantees the right to:
- Silence
- Not be tried twice for the same crime (double jeopardy rule)
- To a grand jury (provides that a person cannot be tried for a capital or infamous crime unless first indicted by grand jury - determines if there is enough evidence for a trial)
- To not be deprived of liberty without due process of law
- Just compensation when property is taken for public use.

Question 11

Explain the 6th Amendment.

Answer 11

“Right to a speedy and public trial”.
This guarantees the right to:
- A fair and speedy trial by an impartial jury
- Legal counsel
- Be informed of the nature of the accusation
- Compel witnesses to testify during the trial.

Question 12

Explain the 9th Amendment.

Answer 12

“Rule of construction of the Constitution”.

States that the enumeration of these rights does not deny the existence of other rights retained by the people.

Question 13

How does the US Constitution provide for implied rights?

Answer 13

The US Supreme Court has read implied rights into the US Constitution and Bill of Rights.

Question 14

Explain what occured in “Griswold v. Connecticut (1965)” - US CASE.

Answer 14

• A physician was arrested for giving information about contraception to a married couple.
• Connecticut law prohibited the use of ‘any drug, medicinal article, or instrument for the purpose of preventing contraception’.
• Supreme Court overturned this law.
  > Believed it infringed the implied right to privacy
• Court suggested other Amendments supported the implied right to privacy:
  > 4th Amendment.
  > 5th Amendment.

This court decision raised questions concerning un-enumerated (implied rights) in the 9th Amendment.

Question 15

List some strengths of the US Bill of Rights as a means of protecting rights.

Answer 15

• Extensive.
• Difficult to change.
• Remedies are provided by the courts if rights have been infringed.
• The US Supreme Court can declare that an Act or section of an Act infringes the Bill of Rights and is therefore invalid.
  > Cannot be overridden by Congress.

Question 16

List some weaknesses of the US Bill of Rights.

Answer 16

• Difficult to change.
• People may not be asked to vote on a referendum, means nobody has a say in Amendment to Constitution.
• Rights in the Bill of Rights can be interpreted by the US Supreme Court very narrowly (can cause injustices).

Question 17

List some similarities between the Australian and US constitutional protection of rights.

Answer 17

• Rights can only be altered, added or removed by amending the Constitution through a complex procedure.
• High/Supreme Court has found that the Constitution contains implied rights.
• Individuals and groups can bring a complaint about an Act infringing their rights set out in the Constitution/Bill of Rights.
• A Court can make an Act invalid if it is inconsistent with the Constitution/Bill of Rights.
• Parliament/Congress cannot override a High/Supreme Court ruling relating to a right.
• Parliament/Congress can change or amend an offending Act.
• Separation of powers exists.
• Representative government.

Question 18

List some differences between the Australian and US constitutional protection of rights.

Answer 18

US

• Extensive list of express rights.
• Process for amending the Constitution is longer and more complex.
• Executive, judicial and legislative are separate.
• Responsible government does not exist.
• Bill of Rights applies to federal and state legislatures and governments.

AUSTRALIA

• Only give express rights (and freedom of political communication which is an implied right).
• Process for amending Constitution is outlined in S128 (shorter, less complex).
• Executive and legislative are combined.
• Responsible government applies.
• Protected rights in the Commonwealth Constitution apply to Commonwealth Parliament (only some rights apply to state as well).

Question 19

What are entrenched rights?

Answer 19

Rights that are protected by a Constitution and can only be changed through methods set out in the Constitution.

Question 20

What are express rights?

Answer 20

Rights that are expressly referred to in a Constitution.

Question 21

What are implied rights?

Answer 21

Rights that are not expressly referred to but are read into a Constitution by implication.

Question 22

Explain structural protection of rights.

Answer 22

Refers to the protection of rights contained in the structure and text of the Constitution.
Provides indirect protection of the rights of Australians in their dealings with the Commonwealth Parliament.

Question 23

How does the Australian Constitution provide for the structural protection of rights? (VERY BASIC)

Answer 23

Separation of powers, responsible government and representative government.

Question 24

How does the Australian Constitution provide for the principle of separation of powers?

Answer 24

• The legislative and executive are separate from the judicial.
• If the Commonwealth Parliament oversteps these powers, the High Court (if a case is brought before them) can declare that the law is unconstitutional.
  HOWEVER
• Legislative and executive are combined (PM, Senior ministers and government departments - Executive, Parliament - Legislative).
• Justice of the High Court are appointed by the government.

Question 25

How does the Australian Constitution provide for the principle of responsible government?

Answer 25

• Section 53 gives legal recognition of this principle.
  > Government cannot operate unless it is able to collect tax and spend money (pay defence money and public servants).
• Only H/Reps can initiate appropriation Bills (for collecting taxes and distributing revenue) and therefore the government must have the confidence of the lower house to run the country.

Question 26

How does the Australian Constitution provide for the principle of representative government?

Answer 26

• Section 7 directs that senators shall be directly chosen by the people.
  > Section 24 for H/Reps.
• Sections 8 and 30 require that each elector shall only vote once.
• Sections 7 and 24 provide for the implied right of the right to vote as they restrict Commonwealth Parliament from passing legislation which interferes with this right.

Question 27

What are the five express rights in the Constitution?

Answer 27

• S116 (Freedom of religion)
• S117 (Rights of residents in States)
• S92 (Trade within the Commonwealth to be free)
• S80 (Trial by jury)
• S51 xxxi (Receive ‘just terms’ when property is acquired by the Commonwealth)

Question 28

Explain Section 92 of the Australian Constitution.

Answer 28

“Trade within the Commonwealth to be free”

Restricts the states from making laws that interfere with free trade within the Commonwealth.
However, legislation is acceptable as long as it does not impose a burden on interstate trade, or discriminate against interstate trade.

Question 29

Explain Section 80 of the Australian Constitution.

Answer 29

“Trial by jury”

Any individuals who have broken the law must be given a trial by an impartial, unbiased jury where they are considered innocent until proven guilty.

Question 30

Explain Section 116 of the Australian Constitution.

Answer 30

“Freedom of religion”

The Commonwealth cannot pass a law which:

• Establishes a state religion.
• Imposes any religious observance.
• Prohibits any free exercise of a religion.
• Requires a religious test as a requirement for holding a Commonwealth office.

Question 31

How does the Australian Constitution provide for implied rights?

Answer 31

The High Court have received cases where they have interpreted the words of the Constitution and read into or implied rights.

Question 32

What is a case study referring to Australian implied rights?

Answer 32

Attorney-General for the State of SA v. Corporation of the City of Adelaide (2013).

Question 33

Outline what occurred in “Attorney-General for the State of SA v. Corporation of the City of Adelaide (2013)”.

Answer 33

The High Court found that there was an implied right to freedom of political communication in 1992.

• Two brothers preach on religious and political matters.
• Challenged the validity of Adelaide City Council by-laws which prohibit preaching on any road without a permit.
  > Argues that the by-laws infringed the implied freedom of political communication.
• Majority of the High Court Justices upheld the validity of the council by-laws.
  > Did not infringe the implied right.

Question 34

List a case which highlights the structural protection of rights in the Australian Constitution.

Answer 34

Vicki Lee Roach.

Question 35

Explain what occured in the case of Vicki Lee Roach.

Answer 35

• Vicki is sentenced to 6 years in jail with a non-parole period of 4 years.
• Commonwealth Parliament passed an Act which prohibited all convincted and sentenced prisoners from voting in elections.
• Roach argued that Indigenous Australians were disproportionately disqualified from voting.
  > Make 2.5% of the population.
  > Make 25% of the prison population.
• Sections 7 and 24 of the Constitution structurally protect the right to vote (REPRESENTATIVE GOVERNMENT).
  > Commonwealth Act was in conflict with this.
• Won by a majority of 4:2.