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20 Cards in this Set
- Front
- Back
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Define the term 'express rights'.
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- The rights clearly stated in the Constitution. These rights are entrenched in the Constitution and can only be changed by a referendum.
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What are the 5 express rights?
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- S.51 (xxxi): The acquisition of property on just terms - S.80: trial by jury for indictable offences against Commonwealth law - S.92: freedom of movement - S.116: freedom of religion - S. 117: protection against discrimination on basis of state residence |
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What is an implied right?
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- Some rights may be implied in the Constitution. This includes drawing implications from the words of the Constitution, referring to interpreting what is intended but not actually said.
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What is the 1 implied rights?
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- Right to freedom of political communication. This right was recognised in the case Australian Capital Television Pty Ltd v. The Commonwealth (1992).
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What are structural protections and how do they protect rights?
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- Separation of Powers: judicial, legislative and executive. No one person holds absolute power and provides for checks and balances. - Representative government: ensures members of the executive government are accountable to the electorate and represent the values of the voters, the foundation of democracy (S.7, 24, 28, 13) - Responsible government: requires the members of the executive government to me drawn from and answerable to parliament - High Court: ensures the states and Commonwealth abide the Constitutions terms - Bicameral parliament: Senate that acts as the house of review for the HOR |
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How does the Constitution protect rights and how are they enforced?
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- The Constitution protects rights via structural protections, express rights and an implied right. These rights are interpreted and enforced by the High Court. The High Court has the power to declare laws invalid if they contradict the Constitution.
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What is a strength and weakness of the Constitution in protecting rights?
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- Express rights are entrenched and can only be changed via successful referendum - well protected. - Only 5 - limited rights, and aren't particularly important nor applicable - Implied rights ensures our right to have a representative government. - There is only one, and it is not well protected as it is not entrenched. Nor is it always applicable. |
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What is a strength and weakness of the Constitution in protecting rights? (cont.)
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- The only way entrenched rights can be changed is by a successful referendum, which is very difficult process to execute - well protected. - Should more rights need to be included, it is costly and time consuming with a low success rate. - High court judges are highly skilled experts in ensuring protection and justification of rights. - They must wait for a case to be brought before the court - cannot act on own accord. |
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What is a strength and weakness of the Constitution in protecting rights? (cont.)
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- Structural protections ensure protection of individual rights and prevention of the abuse of power by the Commonwealth. - Have no explicit right to vote, which means the principle of representative/responsible government is not well protected and not always upheld. |
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What is a Bill of Rights?
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- a written statement of rights to be protected for the benefit of the people whom it applies.
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What is a statutory Bill of Rights?
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- A Bill of Rights that is an ordinary Act of parliament that can be amended or repealed in the same manner as any other Act of parliament.
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What is an entrenched Bill of Rights?
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- A Bill of Rights contained in a constitution which may only be altered after following a special process, such as a referendum.
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How is Australia's and Canada's approach to the protection of rights similar?
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- Express rights are entrenched and can only be changed by holding a referendum to change the Constitution. - Rights are fully enforceable by the courts, which can declare legislation that violates protected rights as invalid. - There is pre-legislative scrutiny in both countries to determine compliance with protected rights - by the Minister for Justice and standing committees in Canada, and the Senate Standing Committee on legal and Constitutional Affairs in Australia. |
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How is Australia's and Canada's approach to the protection of rights different?
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- The Canadian Charter has a far more extensive list of express rights than the Australian Constitution, and these are contained in a bill of rights, which Australia does not have. - Some Canadian rights can be overridden by parliament (not democratic or mobility rights), but no Australian rights can. |
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How is Australia's and Canada's approach to the protection of rights different? (cont.)
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- Canadian Supreme Court can be called on to offer an opinion to parliament as to the validity of proposed legislation, whereas the Australian High Court does not give advisory opinions - it must wait for a dispute to come before it. - Canadian Courts can offer remedies to parties whose freedoms have been infringed, which is not an option for the Australian High Court. |
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How is Australia's and Canada's approach to the protection of rights different? (cont.)
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- The Canadian Charter acts as a limitation on the actions of both the Canadian and Provincial Parliaments, while the Australian Constitution mostly limits legislative power of the Commonwealth and does not apply to the states (except S.92) - There is a limitation clause in the Canadian Charter allowing legislation to be passed that could infringe rights if it is justified. - The separation of powers if limited in Canada, with the Senate being chosen by members of the House of Commons, so there is a fusion of the executive and legislative powers. |
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What is an example of a High Court Case relating to constitutional protection of rights?
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- Roach v. Electoral Commissioner (2007) - Vicki Lee Roach (Aboriginal descent) who in 2004 was charged on five various offences and sentenced to six years imprisonment. - Questioned validity of certain amendments in the Electoral Act made by the Electoral and Referendum Amendment Act 2006 - Before 2006, only those prisoners serving a sentence of imprisonment of 3+ years were eligible to vote in federal elections. - After amendments, all prisoners were eligible to vote |
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What is an example of a High Court Case relating to constitutional protection of rights? (cont.)
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- Roach had 4 arguments, but the 4th was only used stating 'the act limited the operation of the system of representative and responsible government mandated by the Constitution
- 4:2 majority decided that the 2006 amendments to be invalid and unconstitutional - S.7 and 24 protected the right to vote stating all members must be selected by the people |
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What is an example of a High Court Case relating to constitutional protection of rights? (cont.)
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- Right to vote could be removed for indictable offences but not minor offences - Prisoners serving 3+ years remained unable to vote - Roach remained unable to vote |
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What was the significance of this case?
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- Affirmed there was a constitutional right to vote protected by the structure of representative government - Not implied, but reflects structural protections - Restricted Commonwealth to not legislate away the right to vote with no good reason. |
