UNIT 3 - AOS 2B Flashcards
bill of rights
a document that describes the extent of individual democratic and human rights
entrenched rights
rights that are protected by a constitution and can only be changed through the methods set out in the constitution
express rights
rights that are explicitly referred to in a constitution, bill of rights or similar document.
Some express rights are entrenched in constitution.
This means they cannot be easily changed by an Act of Parliament. Express rights are also referred to as explicit rights.
Usually changed through referendum
implied rights
rights that are not expressly referred to but are read into a constitution by implication
responsible government
the executive government (prime ministers,senior ministers, government departments) is accountable to parliament, and can only continue to govern as long as it has support of the lower house.
If the government loses support of lower house then it must resign
representative government
refers to a government that reflects the views of the majority of people
separation of powers
The principle separation of powers refers to the fact that there are three seperate type of powers in our parliamentary system.
These include: legislative, executive and judicial.
Each type of power is exercised by a different institution
statutory (unentrenched) rights
a bill of rights that is part of an act of parliament, and can be changed by an amending act of parliament.
They are express rights but are not entrenched in constitution. The rights can not be over rided, only amended by parliament
structural protection of rights
the systems and mechanisms found in the constitution that operate to indirectly protect human rights by preventing abuse of power. The structures include:
separation of powers
representative government
responsible government
ultra vires
law that is beyond the legal power authority of the body that created it
constitutional protection
rights that are protected by constitution whether by the structures and mechanisms, or by being expressly written or being implied by superior court.
what are the five express rights in the constitution
S51 - acquisition of property on just terms
S80 - the right to trial by jury for commonwealth indictable offences
S92 - freedom of interstate trade and commerce
S116 - freedom of religion
S117 - freedom from interstate discrimination
structural protection of rights
the systems and mechanisms incorporated in the constitution that operate to prevent governmental power being concentrated in the hands of a few or being abused.
- the bicameral parliament
- the separation of powers *
- representative government *
- responsible government *
- the high court
how does the bicameral parliament relate to structural protection of rights
the senate acts as a house of review for house of reps
how does the separation of powers relate to structural protection of rights
ensures that no one body holds the power to make (legislative), enforce (executive) and adjudicate a breach (judicial) of the law, helps prevent abuse pf power and acts as checks and balances.
how does representative government relate to structural protection of rights
ensures that all members of the parliament are accountable to their electorate and represent the views of their voters..
SECTION 7 - provides that senators for each state be directly chosen by the people of that state
SECTION 24- states the HOR be composed of members chosen directly by the people.
how does the high court relate to structural protection of rights
who is seen as ‘guardian of constitution’ ensures that the government abide by its terms
express rights in Australian constitution - section 51 (xxi)
acquisition of property
S51 (xxi) acquisition on property on just terms provides that the commonwealth parliament may make laws to acquire property from individuals ‘on just terms’.
Although this section may appear to recognise the right of individuals to own property, it also recognises that there may be a reason why parliament needs to a acquire property on an area of law they have jurisdiction to legislate
on what terms can commonwealth acquire property form individuals (express rights)
HIGH COURT INTERPRETATION STATES THAT:
- commonwealth parliament may acquire for a person they can legislate in
- parliament must be able to show just terms, providing fair and level amount of constitution
-
implied right in Australian constitution
the right of freedom of speech is not stated in the constitution however the high court has determined that constitution contains the implied right of - freedom of communication on political matters
example of implied right in Australian constitution - political advertising case
AUSTRALIAN CAPITAL TELEVISION PTY LTD VS THE COMMONWEALTH (1992) A.K.A - THE POLITICAL ADVERTISING CASE
- constitution establishes a structure of representative government, where members of parliament are elected by electors.
- free discussion/debate about public affairs and political matters is essential to an informed vote and the system of representative government.
- since constitution provides for representative government, implies the need for a free debate so that representative vote is informed
POLITICAL ADVERTISING CASE - 1992 - FACTS
- commonwealth had legislation that banned all political advertising on radio/tv during election.
POLITICAL BROADCASTS AND POLITICAL DISCLOSURES ACT 1991 (CTH) - legislation allowed some free advertising to those political parties which already held members of parliament
POLITICAL ADVERTISING CASE - 1992 - OUTCOME
- high court found legislation invalid as it overrode an implied constitutional right to freedom of political communication
- reasoning was allowed to provide for effective representative government. allowing individuals to make educated and informed vote
political advertising case - 1992 - impact
- legislation became invalid as it overrode an implied constitutional right to freedom of political communication
THEOPAHNOUS V HERALD AND WEKKLY TIME LIMITED
how did it confirm and extend the implied right to political communication ?
extended to allow for comments about the members of parliament and their suitability for office
therefore can not be labelled as defamatory
how are constitutional rights enforced
the constitution protects rights via structural protections, express rights and an implied right. These rights are interpreted and enforced by the high court.
what occurs if commonwealth develop law which violates constitutionally protected rights
becomes invalid and the parliament can either:
1. amend to remove unconstitutional provisions
or
2. try and remove right in the constitution by amending constitution according to section 128
complaints based approach
to the enforcement of rights and as people/groups who believe that their rights have been infringed can be challenged before high court.
The high court deals with whether the law passed by the parliament is valid/invalid. DO NOT PROVIDE A REMEDY
rights that are protected by acts of parliament/ common law can be enforced through courts
human rights bodies who investigate laws?
complaints based approach ????
australian human rights commission who investigate laws that may contravene.
The commission can recommend to parliament that the laws need to be amended
WATCH DOG APPROACH
evaluation of the protection of the rights of australians by the commonwealth constitution
S1/W1
S1. express rights can not be changed unless through a referendum with support of community
W1. rights contained in a constitution are difficult to change due to referendum process. Rights may lag behind when attitudes change and technology advances.
evaluation of the protection of the rights of australians by the commonwealth constitution
S2/W2
S2. implied rights of freedom of political communication has been found in the constitution, showing that rights can be declared and clarified by the high court when needed to preserve justice
W2. very few rights are protected under the constitution
evaluation of the protection of the rights of australians by the commonwealth constitution
S3/W3
S3. the courts can interpret legislation and the constitution in a timely fashion as the need arises to avoid injustices
W3. complaint based approaches to right protections means high court can’t declare infringement of right and offending legislation to be invalid unless case is brought before court
evaluation of the protection of the rights of australians by the commonwealth constitution
S4/W4
S4. leaving most rights to legislators to protect means they can be changed easily if need arises
W4. using common law as a means of protecting rights depends on a case coming before the courts which is expensive/time consuming
express rights in australian constitution - no 2
- trial by jury for commonwealth indictable offences
S80
trial on indictment commonwealth offences are mandatory and decision must be unanimous.
only for commonwealth not state
express rights in australian constitution - no 3 - freedom of interstate trade and communication
S92
freedom primarily relates to trade, commerce and communication. e.g. movement of people, transport of goods and transmission of communication
state or commonwealth
express rights in australian constitution - no 4 - freedom of religion
S116
commonwealth cannot impose aa national religion, or prevent or practice religion.
Commonwealth can provide financial assistance to religious schools to improve religious observance.
does not apply to states
express rights in australian constitution - no 5 - freedom from interstate discrimination
S117
protection against discrimination on basis of state residency.
does not protect from general discrimination of individual
vicki lee roach facts
- 2004 convicted on five counts of offences
(burglary, conduct endangering person, neglect causing serious injury) - 6 years imprisonment
- questioned validity of amendment to electoral act that prohibited all prisoners serving time for offence from voting in federal elections
- challenged constitutional validity
- act limited operations of system of representative and responsible government
- didn’t agree with: ELECTORAL AND REFERENDUM AMENDMENT ACT 2006 (CTH)
vicki lee roach outcome high court
- 2006 amendment declared invalid and unconstitutional
- inconsistent w principle of representative government. ensures right to vote
- over three year limit still applies
vicki lee roach case impact on protection of rights
confirmed constitutional right to vote protected by structures e.g. responsible and representative
how are rights protected in US
those stated in the constitution are stated as restrictions on the power of the government. e.g. bill of rights which is a list of the most important rights
list us express rights
- freedom of speech/religion/petition
- right to keep and bear arms
- protection from quartering of troops
- protection from unreasonable search/seizure
- civil trial by jury
express right - freedom of speech/religion/petition (us)
guarantee free speech, free press, religion and to petition the government for a redress of grievances
express right - right to keep and bear arms (us)
provides for a well regulated militia being necessary to the security of a free state and the right of the people to keep and bear arms, shall not be infringed
express right - protection from quartering of troops (us)
provides that troops can not be quartered in someones house without the householders consent
(not as relevant)
express right - right to regulated search and seizure (us)
guarantees the right of the people to be secure in their house, papers and effects against unreasonable search and seizures, will not be violated
includes right to privacy
express right - right to trial by jury
provides for a right to jury trial in civil cases.
example of us implied right
GRISWOLD V CONNETICUT (1965)
supreme court found legislation forbidding the giving of advice on contraception for married people INFRINGED AN IMPLIED CONSTITUTIONAL RIGHT TO PRIVACY
structural protection of rights US
what has supreme court found ?
protection from enroachment of rights by state and local governments
- supreme court has found the 14th amendment prohibits state/local governments from enroaching on most civil liberties and rights in the constitution
- federal government can act on behalf of individuals against state/local governments
structural protection of rights US - separation of powers
protects the people in us that the legislative, executive and judicial powers are kept at federal level.
Each arm of government can watch over powers of others.
Courts ensure that the legislator and executive do not abuse their power
structural protection of rights US - representative government
sections 1,2,3 of US constitution requires that the members of congress are to be elected by the people
2 houses = bicameral
18+ to vote
structural protection of rights US - responsible government
DOES NOT APPLY IN THE UNITED STATES
- us president is elected separately and is not a part of congress
- president selects the cabinet which is also seperate from congress and therefore the president and cabinet are not responsible to congress (parliament)
enforcement and protection of rights US
- US supreme court determines meaning and application of these rights
- rights protected in the constitution apply to the actions of both federal and state governments
- if a law is made that conflicts the rights in the constitution, the courts may declare the law invalid (similarity between both countries)
limitation of rights US
constitution contains no clause requiring the courts to balance the rights expressed with any other aspect of public interest (similarity)
changing the constitution (us)
longer and complex compared to AUS
- bill to amend constitution must be passed by 2/3rds of both houses of congress
- voted on and be passed by 3/4 of states
- state legislators must approve amendments
no requirements that all states must consider the proposal at the same time
what are the five comparison questions between australia and us
- entrenched or statutory ?
- what type of rights are protected ?
- how are rights enforced and interpreted ?
- remedies after infringement ?
- can rights be changed ?
comparison AUS US - entrenched or statutory ?
both fully entrenched, however US have far more extensive range
comparison AUS US - what type of rights are protected ?
AUSTRALIA
protected rights in constitution apply to commonwealth, some apply to states.
- five express rights
- implied rights = freedom of political communication
- structural protection, limited right to vote
US
- structural protection from enroachment by state/local gov.
-14th amendment prohibits state/local gov from encroaching on civil liberties and rights in constitution
- bill of rights applied to both federal/state legislators and governments
comparison AUS US - how are rights enforced and interpreted ?
AUSTRALIA
- rights protected by constitution fully enforceable by courts
- parliament can not override high court
US
- all rights enforceable by courts
- if declared invalid because it infringes express rights, congress can’t override ruling
comparison AUS US - remedies after infringement ?
AUSTRALIA
no remedies, high court = invalid
US
no remedies, supreme court = invalid
comparison AUS US - can rights be changed ?
AUSTRALIA
not w/o referendum as they are entrenched in constitution
US
not w/o referendum as they are entrenched in constitution
A LOT LONGER PROCESS
advantages and disadvantages of bill of rights as a means of protecting rights - US
STRENGTH
- provides extensive amount of protection due to long list of rights
WEAKNESS
- difficult to change and can take years
STRENGTH
- structural protection of rights under sections 1,2,3 of constitution
WEAKNESS
people may not be asked to vote on a referendum for rights in the bill of rights and are not invalid
STRENGTH
remedies are provided by courts, law declared invalid
WEAKNESS
rights contained in BOR can be interpreted by Supreme court very narrowly causing injustices
complaints based approach - Australia
enforcement of rights as people/groups who believe that their rights have been infringed can be challenged before high court.
the high court deals with whether the law passed by parliament is valid or invalid. DONE PROVIDE REMEDY
rights that are protected by acts of parliament or common law can be enforced through courts
independent body for complaints based approach - Australia
The Australian Human Rights Commission who investigates the laws that may contravene human rights.
The commission can recommend to parliament that the law needs to be amended.
AKA WATCH DOG APPROACH
