Human Rights

Question 1

Roach v Electoral commission

Answer 1

s 7 and 24 require representative government ‘chosen by the people’, meaning there is an implied right to vote

Question 2

Lange

Answer 2

Implied freedom of political communication in ss 7 24 64 128

Test: ○ Does the law In effect burden the freedom in its terms, operation or effect?
○ Is the burden legitimate and proportionate?
§ Compatible with the maintenance of constitutional government
§ Reasonably appropriate and adapted to advance that purpose in a manner compatible with the maintenance of constitutional government

Question 3

McCloy

Answer 3

Test for proportionality:
§ Suitable
□ Rational connection to purpose
§ Necessary
□ Obvious, compelling, reasonably practicable, no less burdensome alternative
§ Adequate in its balance
‘Value judgement’, proportionality, legislation important enough for burden

Question 4

Express rights

Answer 4

• 51(xxxi): acquisition of property on just terms
  
  • 80 trial by jury
  • 92 free trade and commerce between states
  • 116 religion
    117 state based discrimination

Question 5

Nationwide News

Answer 5

Proportionality is the idea that there should be a reasonable relationship between an end and the means used to achieve that end.

Question 6

ACTV

Answer 6

Australia does not have a bill of rights is because the framers of the Constitution believed that since Australia had a system of representative government, which gave all voters an equal share in political power, laws to protect rights were simply not necessary

Political free speech implied from constitution

Dawson dissenting: unlike US, Australian constitution does not seek personal liberty buy constitutional restrictions upon government

Question 7

Human rights commission

Answer 7

• Charter of Human rights and responsibilities act ○ S32: all statutory provisions must be interpreted compatible with human rights, international law and domestic decisions relevant
  ○ S7: human rights can be subject under law limited to what can be justified in a free and democratic society based on human dignity, equality and freedom
  S36: supreme court can make a declaration, but declaration does not affect validity of statute or arise legal right