Unit 2 AOS 3

Question 1

What is the significance of the Universal Declaration of Human Rights?

Answer 1

• It is aspirational in nature, and can influence a country’s parliament to enact legislation that aligns with the articles of the declaration.
• It has been adopted by each of the 93 members of the UN and it’s principles have been incorporated into national or domestic law of most countries.
• It has inspired the creation of more international treaties, declarations and agreements and a number of international human rights organisations that provide further recognition and protection of human rights.

Question 2

How does the Australian Constitution protect rights?

Answer 2

1. Express rights
   e.g. - right to freedom of religion s.116
   - right to freedom of interstate trade
   and commerce s. 92
2. Implied rights
   e.g. - implied right to freedom of political communication (Australian Capital Television Pty Ltd v Commonwealth (1992))
3. Structural protections
   e.g. - bicameral government (senate and
   house of reps)
   - High Court is the guardian of the
   Constitution
   - separation of powers (check and
   balance)

Question 3

How does statute law protect rights?

Answer 3

• Australian Parliament passes laws to protect the rights of all Australians
• State passes laws to protect residents of the state
• Parliament can codify common law rights

Question 4

How does the VCHRR protect rights?

Answer 4

• requires public authorities to act compatibly with human rights
• requires parliament to take human rights into account when passing legislation (statement of compatibility)
• requires courts to act compatibly with human rights when interpreting the law

Question 5

How does common law protect rights?

Answer 5

• can declare legislation to be ‘ultra vires’
• precedent
• Parliament cannot override courts on a Constitutional matter
• can declare legislation invalid if it breaches a right protected by the Constitution

Question 6

What is a case that connects to the right to vote in Australia?

Answer 6

Roach v Electoral Commissioner 2007

Question 7

Laws that apply to the right to vote in Australia

Answer 7

• Commonwealth Electoral Act 1918 (all Australians who are 18 and over have the right to vote in federal elections)
• VCHRR s.18 (right to take part in public life, including voting)
• Representative government (s.7 and s.24 members of Parliament should be ‘directly chosen by the people’)
• High Court has found that these laws indirectly protect the right to vote in Australia and prevent Parliament from legislating our rights away without good reason

Question 8

Two conflicting attitudes around the right to vote in Australia

Answer 8

1. voting age
   
   • politically engaged, paying taxes
   • would make an ill-informed vote and could be influenced
2. prisoner voting
   
   • not allowing all people to vote alienates, reducing civic responsibility, also breaches s.7 and s.24
   • should forfeit vote because of serious crime and it won’t affect them

Question 9

Two possible reforms to the right to vote

Answer 9

1. lower voting age from 18 to 16 or 17
2. allow all prisoners to vote

Question 10

What was the impact of the Roach case for individuals?

Answer 10

Affirmed the right to vote for adults in Australia, and that it was protected by s.7 and s.24 of the Constitution.

Question 11

What was the impact of the Roach case of the legal system?

Answer 11

Importance of separation of powers.
- Parliament retains the ability to pass legislation regarding right to vote, High Court ensures they don’t legislate our rights away unless it is reasonable and necessary.
- Structure of representative government also acts as a limit on this power, ensuring Parliament doesn’t legislate our rights away without good reason.
- Showed how access to the legal system is particularly important for our judiciary to provide a proper check and balance on our Parliament.

Question 12

What are the strengths of statute law in protecting rights?

Answer 12

• Parliament can amend statute to incorporate further rights
• detailed and precise
• statute rights are enforceable
• Parliament can pass laws quickly

Question 13

What are the weaknesses of statute law in protecting rights?

Answer 13

• Parliament can amend statute, possibly limiting or restricting rights.
• not as well protected as rights enshrined in the Constitution.

Question 14

What are the strengths of common law in protecting rights?

Answer 14

• judges can establish precedent free from pressure
• establish rights where Parliament has not
• infer rights without considering how they may need to be limited

Question 15

What are the weaknesses of common law in protecting rights?

Answer 15

• not as easy to define or identify
• courts must wait for a case to come before them
• judges are limited in applying the law to the case that is before them. They cannot simply ‘create rights’ in any dispute.