the express protection of rights

Question 1

explain the express protection of rights

Answer 1

• An express right is specifically listed in a document or constitution.
• The Australian Constitution includes five express rights.
• These rights are entrenched and can only be removed via a referendum (Section 128).
• They act as a check on parliamentary power.
• The High Court can declare laws invalid if they infringe on these rights.
• Common law and legislated rights can be abolished by Parliament.
• These rights tend to be expressed as limitations on the Commonwealth Parliament in law-making, rather than as positive rights for individuals.

Question 2

The five express rights in the Australian Constitution are:

Answer 2

• the right to freedom of religion by preventing the Commonwealth from making laws establishing
  a religion, imposing any form of religious ceremony or worship and prohibiting the exercise of any
  religion (section 116)
• the right to free interstate trade and commerce (section 92)
• the right to receive ‘just terms’ when property is acquired by the Commonwealth (section 51(xxxi))
• the right to trial by jury for indictable Commonwealth offences (section 80)
• the right not to be discriminated against on the basis of the state where you reside (section 117).

Question 3

define express rights

Answer 3

rights that are stated in the Australian Constitution. Express rights are entrenched, meaning they can only be changed by
referendum

Question 4

Section 116 of the Australian Constitution states that the Commonwealth Parliament cannot make a
law which:

Answer 4

• establishes a state religion (that is, declares a particular religion as the official national religion)
• imposes any religious observance
• prohibits the free exercise of any religion (that is, prevents people from practising their religion) –
  although this can be limited because of national security or to ensure that people follow the laws of
  the country, as established in Adelaide Company of Jehovah’s Witnesses Inc. v Commonwealth
• requires a religious test as a requirement for holding any Commonwealth office

Question 5

The Australian Constitution – section 116
Commonwealth not to legislate in respect of religion

Answer 5

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no
religious test shall be required as a qualification for any office or public trust under the Commonwealth.

Question 6

explain religion

Answer 6

• Section 116 restricts the Commonwealth Parliament but not the states.
• The High Court interprets ‘religion’ broadly.
• Section 116 protects the right to have no religion, according to Adelaide Company of Jehovah’s Witnesses Inc. v Commonwealth.
• Other parts of section 116 are interpreted narrowly.
• The Commonwealth Government can fund religious schools.

Question 7

explain Trade within the Commonwealth

Answer 7

• Section 92 of the Constitution mandates that interstate trade and commerce must be free.
• This right prevents parliament from treating interstate trade differently from intrastate trade.
• It ensures freedom of movement between states without burden or hindrance.
• It prohibits taxes on goods moving between states and also applies to the movement of people.
• The scope of Section 92 was limited by Cole v Whitfield (1988) 165 CLR 360.
• In Cole v Whitfield, the High Court decided that states can impose some restrictions as long as they do not burden or discriminate against interstate trade.

Question 8

The Australian Constitution – section 92
Trade within the Commonwealth to be free

Answer 8

On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

Question 9

explain the acquisition of property on just terms

Answer 9

• Section 51(xxxi) of the Australian Constitution requires the Commonwealth to provide just terms when acquiring property.
• This means the Commonwealth must pay fair and reasonable compensation for compulsorily acquired property.
• Property includes both tangible and intangible, as well as real (land) and personal (movable goods) property.
• The Commonwealth can only acquire property for purposes or areas within its legislative power (e.g., airports, national parks).
• Section 51(xxxi) applies only to the Commonwealth Parliament, not to states.
• It can apply to state legislation under a Commonwealth funding agreement.
• The validity of the Tobacco Plain Packaging Act 2011 (Cth) was challenged in JT International SA v Commonwealth, which involved Section 51(xxxi).

Question 10

The Australian Constitution – section 51(xxxi)
Acquisition of property on just terms

Answer 10

The Parliament shall … have power to make laws for the peace, order, and good government of the Commonwealth with respect to … the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws …

Question 11

explain the jury trial

Answer 11

• Section 80 of the Australian Constitution mandates a jury trial for indictable Commonwealth offences.
• A jury decision in such trials must be unanimous.
• Section 80 provides a limited right to trial by jury for two reasons:
  
  • It applies only to Commonwealth offences, not state offences.
  • It applies only to the most serious offences tried on indictment.
• The Commonwealth Parliament determines whether a crime is tried ‘on indictment’.

Question 12

The Australian Constitution – section 80
Trial by jury

Answer 12

The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such
place or places as the Parliament prescribes.

Question 13

explain the discrimination on the basis of state residence

Answer 13

• Section 117 of the Constitution prohibits discrimination based on the state of residence by state and Commonwealth governments.
• For example, a New South Wales resident living in Victoria cannot be treated worse under Victorian law than a Victoria-born resident.
• The High Court allows states to favor their own residents in certain cases, such as voting rights in state elections.

Question 14

The Constitution – section 117
Rights of residents in States

Answer 14

A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

Question 15

strengths

Answer 15

• Express rights: Impose limits on parliament when making laws in certain areas.
• Section 116: Prohibits the Commonwealth Parliament from making laws that restrict the free exercise of any religion.
• Entrenchment: Express rights are entrenched and cannot be removed or amended without a successful referendum.
• Referendums: Difficult to pass, ensuring express rights continue as a check on parliament.
• High Court: Can swiftly declare laws ultra vires (beyond parliament’s power) and invalid.
• Independence: The High Court protects express rights even if it conflicts with government views.

Question 16

weaknesses

Answer 16

• Limited scope: Some express rights apply only to the Commonwealth, not state parliaments, and some are narrow (e.g., right to trial by jury).
• Difficulty of amendment: Referendums are difficult to pass, so the number of express rights has not increased since Federation.
• Reduced checks: Limited express rights mean fewer checks on government, with no new rights likely to be added.
• High Court’s role: The court is reactive; a case must be brought to court for it to act.
• Litigation challenges: Legal challenges are expensive, time-consuming, and require the plaintiff to have standing.
• Law validity: Express protection does not prevent the Commonwealth Parliament from passing laws; a law must be challenged in court to be declared invalid.