Constitution Part B

Question 1

Freedom of religion

Answer 1

Section 116
Can’t make a national religion
Can’t make a law requiring r.e observance
Can’t stop religious practising
Can’t make religion a prerequisite for a public position.

Question 2

High court case

Answer 2

David Lange v Australian Broadcasting Company (ABC) (1997)
Thought he had been defamed
High court found implied right “right to freedom or political communication” was applicable
Court accepted implied right defence from abc

Question 3

Implied right

Answer 3

Freedom of political communication

Question 4

Freedom of political communication

Answer 4

Structural right- representative government

Rep gov could not operate well if electors didn’t have the right access to political information

Question 5

Structural protection

Answer 5

Guard against misuse of power
Representative gov- people choose
Responsible gov- accountable to parl. and parl. accountable to people
Separation of powers- legislature, executive, judicial

Question 6

Significance of Lange

Answer 6

The law must allow for freedom of political communication

Question 7

Strengths of protection if rights in Australia

Answer 7

Express rights are entrenched
High court guardian of const.
Prevents abuse of power (express, implied and structural protection mix)
High court can find new implied rights through interpretation

Question 8

Weaknesses of protection of rights in Australia

Answer 8

Const. Only protects limited rights, relies heavily on legislation and common law
Rights spread through const. rather than bill of rights
High court must wait for a case before interpreting

Question 9

USA constitution

Answer 9

Bill of rights
Rights are entrenched
Democratic, civil, political, economic, social, cultural

Question 10

How USA rights enforced

Answer 10

Individuals or groups take legal action
Courts interpret whether law contravenes bill of rights
Supreme Court has ultimate power

Question 11

Changing USA const.

Answer 11

Two thirds majority of both houses of congress
Three quarters of all states must approve
= amendment

Question 12

Some rights in USA const.

Answer 12

Right to bear arms
Right not to be tried twice for the same offence (double jeopardy)
Right to a speedy trial
Right to legal representation

Question 13

Implied rights USA

Answer 13

Many more than Australia has

Fourth amendment- guarantees the right of people to be secure in their persons and houses

Question 14

Strengths of USA approach to protection of rights

Answer 14

Entrenched and can’t be changed by legislation
Supreme Court can declare legislation invalid if interferes with constitution
Const. Provides structural and democratic rights and the separation of powers as a checks and balances system

Question 15

Weaknesses of USA approach to protection of rights

Answer 15

Entrenchment makes hard to change
Enforcement depends on person/group taking action (before Supreme Court)
No input from people for referendum

Question 16

Similarities between USA and Australian approaches

Answer 16

Rights can only be altered, removed or added through complex procedure
High/Supreme court have found implied rights
Individuals and groups can bring complaints that they believe have their rights infringed
Separation of power prevents abuse of powers
Structural protection

Question 17

Differences of USA and Australian approaches

Answer 17

USA- list of express rights are extensive (bill of rights)
Aus.- only 5 express rights
USA- complex procedure, doesn’t involve people
Aus.- only amend through s. 128
USA- exec, leg and judicial powers separate
Aus.- exec and leg powers combined, judicial separate

Question 18

Means by which the const. protects rights

Answer 18

Express rights

Implied rights