express rights

Question 1

express protection of rights

Answer 1

an express right is a right that is specifically listed in a document or constitution
the constitution contains 5 express rights
they can only be removed by a referendum
they operate as an explicit check on parliament
any law they pass that infringes an express right can be declared invalid by the high court

Question 2

express rights

Answer 2

• the right to freedom of religion (section 116)
• the right to free interstate trade and commerce (section 92)
• the right to receive ‘just terms’ when property is acquired by the Commonwealth (section 51 (xxxi))
• the right to trial by jury for indictable Commonwealth offences (section 80)
• the right to not be discriminated against on the basis of the state where you reside (section 117)

Question 3

The right to freedom of religion (section 116)

Answer 3

Section 116 states the Commonwealth cannot make a law which:
- establishes a state religion
- imposes a religious observance
- prohibits the free exercise of any religion
- requires a religious test as a requirement for holding any commonwealth office
this does not apply to the states

Question 4

The right to free interstate trade and commerce (section 92)

Answer 4

Interstate trade and commerce must be free
- the right prevents parliament from treating interstate trade differently from trade within a state
- it provides freedom of movement between states without burden or hindrance
- e.g. prevents taxes being imposed on goods moving from one state to another
the right mainly refers to trade and commerce but can also refer to movement of people between states
the scope of section 92 was limited - some restrictions can be placed as long as they do not impose a burden on interstate trade or discriminate against interstate trade

Question 5

Right to receive ‘just terms’ when property is acquired by the Commonwealth (s51 (xxxi))

Answer 5

Under s51 (xxxi) the Commonwealth must provide just terms when acquiring property
- this means they must pay a fair and reasonable compensation for property that is compulsorily acquired
the high court has held that property includes both tangible and intangible property and real (immovable property such as land) and personal property (movable property such as goods)
they can only acquire property for a purpose or area for which it has the power to make laws
this section applies to the commonwealth and not the states
- however, the high court has found that section 51 (xxxi) can apply or state legislation that is passed under a Commonwealth funding agreement

Question 6

The right to trial by jury for indictable Commonwealth offences (s 80)

Answer 6

Under section 80, there must be a jury trial for indictable Commonwealth offences under criminal law
- the high court has found that a decision of a jury in such a trial must be unanimous
however, section 80 provides only a limited right to trial by jury for 2 reasons:
- most indictable offences are crimes under state law, and this section only applies to commonwealth offences
- the high court has ruled that indictable means crimes tried on indictment - only extends to most serious offences

Question 7

The right not to be discriminated against on the basis of the state where you reside (s 117)

Answer 7

Under section 117 of the Constitution, it is unlawful for state and Commonwealth governments to discriminate against someone on the basis of the state in which a person resides

For example: a resident of NSW living in Victoria cannot be subject to Victorian law that would place them in a worse position that if they were born in Victoria

The high court has said that states can favour their own residents in limited circumstances, such as the right for only residents of a state to vote in elections for the state

Question 8

strengths

Answer 8

• when a matter is brought before it, the high court can act swiftly in declaring a law to be beyond parliament’s power (ultra vires) and thus invalid
• the high court is independent and will make decisions protecting the express rights even if they are contrary to the views or preferences of government

Question 9

weaknesses

Answer 9

• the express protection of rights does not prevent the Commonwealth parliament from passing the law. It will require the law to be challenged in court for the law to be declared invalid
• the rights that are protected are limited in scope. For example, some express rights only apply to the Commonwealth and not the state parliaments, and some rights are narrow, such as the right to trial by jury. This limits the restrictions that are imposed on the Commonwealth Parliament