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
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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