U2 AOS3 - The Constitution and Express Rights

Question 1

What is the constitution?

Answer 1

• A founding document that outlines how Australia is to be governed. For example, the Constitution establishes the Commonwealth Parliament and outlines its structure and lawmaking powers

Question 2

What is a referendum?

Answer 2

• A method used for changing the wording of the Australian Constitution. It is a compulsory national vote in which everyone on the electoral roll votes ‘yes’ or ‘no’ to alter the Constitution

Question 3

Double majority

Answer 3

• This is required in order for a referendum to be successful. It involves a national majority of all Australian voters voting ‘yes’, and a majority of voters in a majority of states (4 out of 6) voting ‘yes’

Question 4

What express right is stated in Section 51(xxxi)?

Answer 4

• The right to receive just terms when property is acquired by the Commonwealth

Question 5

Strengths of Section 51(xxxi)

Answer 5

• The Commonwealth cannot pass a law taking a person or company’s land or possessions unless fair and reasonable compensation is provided

Question 6

Weaknesses of Section 51(xxxi)

Answer 6

• The Commonwealth can still acquire property from Australian citizens
• There is no specification or statement on what constitutes ‘just terms’, potentially leading to some unsatisfactory outcomes
• It does not apply to the states

Question 7

What express right is stated in Section 80?

Answer 7

• The right to trial by jury for Commonwealth indictable offences.

Question 8

Strengths of Section 80

Answer 8

• This applies for individuals who have been charged with offences such as terrorism, people smuggling, drug importation and fraud
• The Commonwealth cannot legislate to have indictable offences tried by a judge alone, which enhances a fair trial

Question 9

Weaknesses of Section 80

Answer 9

• Many criminal offences are created by state laws, and this section does not apply to the states

Question 10

What express right is stated in Section 92?

Answer 10

• The right to free interstate trade and commerce.

Question 11

Strengths of Section 92

Answer 11

• Both Commonwealth and state parliaments cannot pass laws that restrict free movement of goods or individuals between states, such as taxes

Question 12

Weaknesses of Section 92

Answer 12

• Occasionally, laws can be passed that are exceptions to this rule, such as during the Covid-19 pandemic, when Western Australia hard-locked down their borders, which was deemed constitutional by the High Court

Question 13

What express right is stated in Section 116?

Answer 13

• The right to freedom of religion under Commonwealth law

Question 14

Strengths of Section 116

Answer 14

• The Commonwealth Parliament cannot parcel law that imposes or bans a religion
• A person cannot be denied a position in the Commonwealth Parliament or a later positions because of their religious beliefs

Question 15

Weaknesses of Section 116

Answer 15

• It does not apply to the states
• A law that has the effect of forcing a person to do something their religion prohibits does not necessarily breach this section (e.g. conscription into fighting a war)

Question 16

What express right is stated in Section 117?

Answer 16

• The right not to be discriminated against based on your state of residence

Question 17

Strengths of Section 117

Answer 17

• The Commonwealth Parliament cannot pass a law that treats Victorians less favourably than New South Wales citizens
• States cannot pass laws that impose a burden on a person because they live in a different state

Question 18

Weaknesses of Section 117

Answer 18

• Some laws that legislate upon residents of different states in a restrictive manner may be acceptable, such as a Victorian law that prevents residents of New South Wales from voting in Victorian elections
• Relatively few high court cases have involved the interpretation of this section, and as a result it remains unclear which laws would or would not violate it