U2 AOS 3 - Protection of rights in Australia

Question 1

What is a right?

Define

Answer 1

A moral or legal entitlement to have or do something.

Question 2

Describe rights

Answer 2

A basic freedom or standard that promotes and upholds the dignity of all people.

Question 3

What is the purpose of rights?

Answer 3

To protect basic freedom, promote and uphold the dignity of all people.

Question 4

What are the 5 major rights in Australia?

Answer 4

Freedom of:
- Speech
- Association
- Assembly
- Religion (expression)
- Movement

Question 5

How are rights protected/what are they protected through?

Answer 5

• Statute law
• Common law
• Australian constitution
• International declaration

Question 6

Statute law:

What is the role of Commonwealth parliament in protecting rights?

Answer 6

Cth Parliament has power to pass legislation laws to protect rights of all Australians.

Question 7

Statute law:

What is the role of state and territory parliament in protecting rights?

Answer 7

Each state and territory has power to pass laws to protect rights of residents in that state or territory.

Question 8

What is the Victorian Charter of Human Rights and Responsibilities?

Answer 8

Charter that sets out basic rights, freedoms and responsibilities of Victorian people
- requires certain bodies to uphold rights it contains.

Question 9

Examples of basic rights (3)

Answer 9

• Right to life
• Fair hearing
• Not to be tried or punished more than once (double jeopardy)

Question 10

Strengths of statute law in protecting rights (3)

Answer 10

• Parliament can amend statutes to incorporate further rights as society changes.
• Can pass laws quickly if needed
• Statutes often detailed and precise, protect specifically rather than left to interpretation.

Question 11

Weaknesses of statute law in protecting rights (3)

Answer 11

• Parliament can amend statutes, rights may become limited or no longer exist
• Can impose limits or restrictions, protected rights not always absolute
• Statute laws not always well protected (can change easily) whereas constitutional rights protected as they are hard to change.

Question 12

When do judges play a large role in resolving disputes relating to rights?

Answer 12

When there has been a breach of human rights

Question 13

What are the three ways that rights are protected in common law?

Answer 13

1. Courts establishing new rights, independent of what is contained in statute law (common law rights)
2. Courts recognising and upholding right contained in statute law.
3. courts declare a statute that restricts rights has been made beyond powers of parliament

Common law rights, uphold rights in statute, declare Acts invalid.

Question 14

What is a common law right?

Answer 14

When the court establishes new rights that are not contained in statute law (e.g right to a fair hearing, legal representation).

Question 15

How do judges uphold rights through statutes?

Answer 15

When making judgements, judge points to rights in statutes and legislation.

Question 16

How does codification allow courts to uphod rights?

Answer 16

Court judgements that establish or recognise human rights can be codified by parliament (e,g right to a fair hearing).

Question 17

How does abrogation allow courts to uphold/protect rights?

Answer 17

Parliament can abrogate human rights that have been established in common law.
CANNOT override rights established in High Court matters involving interpretation of Australian Constitution.

Question 18

What are some common law rights?

Answer 18

• Right to legal representation
• Right to toilet breaks

Question 19

What is the common law right to legal representation?

Answer 19

• When charged with indictable offence, accused recognised to have right to legal representation.
• Judges can adjourn hearing until accused finds rep.

Question 20

What case was the right to legal representation recognised in?

Answer 20

Deitrich v The Queen in the High Court of Australia.

Question 21

What does the right to toilet breaks entail?

Answer 21

Right to have access to toilet or drink breaks while at work, outside of scheduled breaks.

Question 22

When can the High Court declare Acts invalid?

Answer 22

When law was made outside or beyond parliament’s law-making powers (declared ultra vires)

Question 23

What is the process of declaring Acts invalid?

Answer 23

Commonwealth parliament passes act beyond its law-making powers
- Challenge this in High Court
Parliament cannot override rulings made by High Court in relation to constitutional matters.

Question 24

What are the strengths of common law in protecting rights?

Answer 24

• Courts are independent of Parliament cand can establish precedent free from political pressures
• Courts make decisions to establish rights in areas where Parliament has not. (not in statute)

Question 25

What are the weaknesses of common law in protecting rights?

Answer 25

• Courts must wait for case to come before them to declare existence of rights
• Parliament can abrogate common law rights

Exclusion of High Court.