Unit 3 AOS2b - Chapter 4: Protection of Rights Flashcards
When can a parliament override a right protected in a bill of rights?
With due consideration being given to the right before changes are allowed to take place. Some bills of rights contain a limitation clause. For example, in the Canadian Charter of Rights and Freedoms there is a limitation clause stating that ‘rights are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’.
What does the bill of rights differ according to?
. The extent of rights protected
. The way the rights are enforced
. The impact of judicial review
. Whether bills need to be scrutinised before they are passed through parliament to see if they will infringe any rights
. What guidance is given to courts for interpreting the protected rights
What is unique about Australia’s constitutional protection of rights?
Australia is the only western nation that does not have a national bill of rights. In Australia, rights are mainly protected by the legislation and common law approach. However, there are some rights protected under the constitution.
The means the rights protected by our Constitution include:
. rights covered by structural protection – the structure and text of the Constitution provides some rights, such as the limited right to vote
. express rights in the Commonwealth Constitution – there are five express rights protected in
the Constitution, including the right to freedom of religion
. implied rights in the Commonwealth Constitution – rights may be implied in the Constitution or have been implied in a High Court decision, such as the right to freedom of political communication.
What is a bill of rights?
A document that describes the extent of individual democratic and human rights.
What is a constitution?
The Commonwealth of Australia Constitution Act 1900 (UK), which came into force on 1 January 1901; a set of rules or principles guiding the way the nation is governed. States have their own separate constitutions.
What is the separation of powers?
This refers to the division of power into three branches, being legislative, executive and judicial powers. The legislative and executive powers are combined at a federal level, whilst judicial powers remain independent. This prevents one body from having all power and therefore helps protect individual rights as it provides checks and balances.
What is a statutory or un-entrenched bill of rights?
A bill of rights that is part of an act of parliament, and can be changed by amending the act of parliament.
What are ultra vires?
Law that is beyond the legal power or authority of the body that created it.
What is a right?
An interest recognised and protected by the law, respect for which is a duty, and disregard for which is wrong.
PG Osborn, A Concise Law Dictionary, 2005
What is a high priority for people living in a democratic society?
The protection of rights.
Where are the most basic human rights (that should be protected) set out?
They are set out by the United Nations in the 1948 Universal Declaration of Human Rights.
What rights does the 1948 Universal Declaration of Human Rights set out?
. right to freedom from discrimination
. protection from unlawful detention
. a presumption of innocence when charged with a criminal offence
. protection from inhuman or degrading punishment
. right to marry and own property
. freedom of religion, conscience and political expression
Why is it necessary for the law-makers in Australia to protect rights through legislation and common law?
There are many international treaties that set out in more detail the sorts of rights that ought to be protected. However, the rights set out in the international treaties that Australia has signed do not automatically become part of Australian law.
Some countries, such as the United States, have constitutions that contain a bill of rights, which protects the rights of their citizens.
What are the four ways in which our rights in Australia are protected?
- Common law (Judge-made law) (can include enforcement)
- Statue law
- International treaties
- Constitutional protection (structural protection, express rights and implied rights)
Explain the following way in which rights are protected in Australia: Common law
This refers to judge-made laws. Many of our criminal offences and defences have been developed through common law. For example:
. Murder and rate laws protect our right to security
. Arson and theft laws protect our right to own property
. Mabo Vs Queensland case gave the right to Native Title
Explain the following way in which Australian rights are protected: Statute law
This refers to laws created by parliament. There are many acts of parliament that protect our rights including the:
. Equal Opportunity Act 1995 (Vic)
. And the Human Rights and Equal Opportunity Act 1986 (Cth)
Both protect our right to no discrimination
Human rights are mostly protected by acts of parliament.
How are the majority of rights created?
Through acts of parliament or common law.
What are statutory rights?
Statutory rights are contained in a bill of rights set out in a statute (or Act of parliament), which contains rights that can be amended or repealed by parliament. These are express rights but are not entrenched in a constitution. Parliament is a supreme law-making body; that is, a law-making body that prevails over all other sources of law, and therefore the bill of rights cannot be overridden by a court or regulation but can be amended by parliament.
This is an adopted approach in New Zealand, Victoria and the ACT
Explain the following way in which our rights are protected in Australia: International treaties
For example the Universal Declaration of Human Rights, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment protects the rights or prisoners of those being detained by authorities.
However, they don’t become enforceable in a country unless made into a law by parliament.
Describe the following express right in Australia: free interstate trade and commerce/freedom of movement
S92 provides that “on the imposition of uniform duties of customs, trade, commerce and intercourse among states, whether by means of internal carriage of ocean navigation, shall be absolutely free.”
High Court interpretations have found that this freedom primarily relates to trade, commerce and communications.
What does the express right freedom of movement/interstates trade and commerce protect?
It protects our trading between states as it ensures that there are no tariffs for interstate trade, meaning interstate trade can occur freely and easily.
Explain the following way in which our rights in Australia are protected: Constitutional protection
This include:
. rights covered by sections of structural protection
- representative government (right to vote - limited, but exists)
- responsible (ensures citizens are governed by a government that has the confidence of the elected lower house)
- separation of powers (provides checks and balances)
. 5 express rights
. 1 implied right
Explain the following form of constructional protection: Express/explicit rights
These rights are also known as explicit rights and written into rights documents. If these are part of a constitution, then they are entrenched, meaning they cannot easily be changed. The process for changing any of these rights is laid down in the relevant constitution and this process must be followed by present and future governments (express rights are usually changed by a referendum).
This is an adopted approach in the U.S., Canada, South Africa and Australia
Explain the express rights in the Australian commonwealth constitution.
The Commonwealth Constitution clearly sets out five express rights (explicit rights). These express rights are entrenched in the Constitution. This means they can only be removed from the Constitution by amending the constitution using the referendum procedure established in S128.
Rights that exist in common law, and rights created by legislation, can be abolished at any time by the commonwealth parliament legislating to override them.