The Constitution And The Protection Of Rights Flashcards Preview

Legal Studies Units 3 & 4 > The Constitution And The Protection Of Rights > Flashcards

Flashcards in The Constitution And The Protection Of Rights Deck (43):

What does the constitution do

It sets up the structure and operation of the senate and House of Representatives. STRUCTURE

It establishes the federal government and commonwealth parliament. FEDERAL AND COMMONWEALTH

It establishes the high court (s71) as the final court of appeal in Australia. S76 gives the commonwealth parliament the power to give the high court the jurisdiction to hear disputes arising under the constitution and involving its interpretation. HIGH COURT

All the powers given to the commonwealth parliament are listed in the constitution and are referred to as specific or enumerated powers (s51 and a small number in s52). S111 and s122 give the commonwealth parliament power over commonwealth territories. SPECIFIC POWERS


What is a constitution

A constitution is a set of rules declaring the nature, functions and limits of government. The role of a constitution is to determine the powers and duties of the government. Some constitutions guarantee certain rights to the people of the country. The Commonwealth of Australia Constitution Act 1900 (UK) (the Constitution) known as the commonwealth constitution is the most important legal and political document affecting the lives of Australians.


Why was a central government needed in Australia

During the 1870s and 1880s, there was a real fear of invasion and a realisation that there was a need for a central body to take charge of the defence of Australia and other matters that affected Australia as a whole.


Role of the commonwealth constitution x4

DIVISION OF POWERS facilitate the division of law-making powers by setting out what the Commonwealth Parliament can do with respect to law-making; that is, the types of laws that can be passed by the Commonwealth Parliament – the states can make laws in any area not mentioned in the Constitution or not specifically made exclusive to the Commonwealth Parliament

LEGAL FRAMEWORK provide a legal framework for the creation of the Commonwealth Parliament and outline the structure of the Commonwealth Parliament, including the composition of the House of Representatives and the Senate

DIRECT ELECTION provide for direct election of the members of the House of Representatives and the Senate by the people of the Commonwealth of Australia

HIGH COURT INTERPRETATION give the High Court the power to interpret the Constitution if the need arises.


The commonwealth constitution and the protection of rights

The Commonwealth Constitution does not contain a bill of rights. It does, however, provide protection for a limited number of rights, such as the right to freedom of religion. The Constitution also provides for representative government and responsible government. This means that if a government is not protecting the rights of its citizens, the citizens can vote the government out of office at the next election.


To what extent are state parliaments supreme law making bodies

The state parliaments are supreme law making bodies for their respective state however Under the Constitution, the states are restricted from making law in areas of exclusive power held by the Commonwealth Parliament; for example, raising an army (S114) and coining money (S115). The power of the states is also restricted by S109, which states that in areas of concurrent power, federal legislation will prevail over state law in all cases where the two laws are inconsistent.


What are rights

A moral or legal entitlement to have or do something. Australia is the only western nation that does not have a national bill of rights. Rights are mainly protected through legislation and the common law. However, rights are protected through the Constitution by express rights, implied rights and also structural protections.


5 types of rights



Structural protections and the 5 main types

Structural protections refer to structures incorporated in the constitution to prevent governmental power being concentrated in the hands of a few. These include:
• Separation of powers
• Bicameral parliament
• Representative government
• Responsible government
• The existence of the high court as the guardian of
the Constitution


Separation of powers structural protection

The principle of the separation of powers is a structural protection.This principle refers to the three separate types of powers in our parliamentary system, and that these powers should be held by separate bodies so that no one body has absolute power or control over the functions of the political and legal systems which would allow them to ignore rights. The legislative and executive power are combined but the judicial power is kept seperate.


Representative Government structural protection

A government which represents the views of the majority of the people. It is established in the constitution and achieved through regular elections so the people can vote for politicians to represent them in parliament. If the government does not represent the needs of the people and honour their rights, it is likely to be voted out of office at the next election. A representative Government must be answerable to the people. When people are concerned that the law is breaching or ignoring rights they may form a demonstration to voice this concern to government who will need to honour their rights to remain in power.


Responsible government structural protection

The government’s responsibility to the voters. Ministers are responsible for their departments and need to ensure that they are honouring the rights of the people. Members of parliament can question ministers who must carry out their duties with integrity or resign. A democratically elected government must be answerable and accountable to the people for its actions. The Senate is able to scrutinise Bills before they are passed which helps to ensure the government is being accountable to the people. If the government loses the confidence of the people it must resign.


Express rights

An express right is a right that is enumerated (actually written in the Constitution). They are also entrenched (can only be removed or amended by process of referendum).


Composition of Australia's 5 express rights

3 democratic


3 democratic express rights

s.51(31) – Property acquisition by Cth must be done on ‘just terms’

s.80 – Trial by jury for Commonwealth indictable offences

s.117 – No discrimination between states


One economic express right

s.92 – Trade within the Commonwealth to be free


One human express right

s.116 – Commonwealth not to legislate in respect of religion


s.51(31) – Property acquisition by Cth must be done on ‘just terms’

Commonwealth Parliament may make laws to acquire property from individuals ‘on just terms’. Although this section may appear to recognise the right of individuals to own property, it also recognises that there may be a reason why parliament needs to acquire property from individuals.

High Court interpretations state that The Commonwealth Parliament may acquire property for a purpose for which it has the power to make laws. The Commonwealth must be able to show ‘just terms’; therefore the Commonwealth must provide individuals with fair and reasonable level of compensation.


s.80 – Trial by jury for Commonwealth indictable offences

Trial on indictment for any offence against the law of the Commonwealth shall be by jury. This right applies to Commonwealth indictable offences. The constitutional right to trial by jury does not extend, in theory, to offences against state law.
High Court interpretations have further defined the right to trial by jury to include.

An accused person cannot elect to have a trial by judge alone for a Commonwealth offence. Majority verdicts cannot be used for Commonwealth offences. In all Commonwealth offences the jury verdict must be unanimous.


s.117 – No discrimination between states

S117 provides that residents of any state ‘shall not be subject in any other state to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other state’.

This section makes it unlawful to discriminate against a person based on the fact that they live in another state. It does not provide a general protection against discrimination


s.92 – Trade within the Commonwealth to be free

S92 provides that ‘on the imposition of uniform duties of customs, trade, commerce and intercourse among the states, whether by means of internal carriage or ocean navigation, shall be absolutely free’. High Court interpretations have found the following That this freedom primarily relates to trade, commerce and communications.

That ‘the protection of s92’ is given to the movement of people, the transport of goods, the transmission of communications, the passage of signals of any kind and any other means by which interchange, converse and dealings between states in the affairs of are carried across state boundaries. S92 does not provide an absolute guarantee of freedom of movement.


s.116 – Commonwealth not to legislate in regards to religion

S116 provides for freedom of religion. This section consists of four parts.

The Commonwealth shall not make a law establishing any religion. The High Court determined that the Commonwealth cannot establish a particular religion, but could assist the practice of religions by providing financial assistance to religious schools.

The Commonwealth should make no law for imposing religious observance. However, it should be noted that this freedom is not absolute. This right may be limited for national security or to ensure that people follow the ‘ordinary laws’ of the community.

The Commonwealth cannot made a law that requires a person to have a particular religious belief in order to be employed by the Commonwealth or to be appointed to a Commonwealth office.

S116 only applies to the Commonwealth. Few states constitutions specifically recognise religious freedom.


3 strengths of express rights

ENFORCEABLE • Express rights are fully enforceable as the High Court can invalidate legislation if it conflicts/infringes upon any express right.
ENTRENCHED • Express rights are entrenched and as such difficult to remove. This means that express rights are very well protected and cannot be amended by Parliament
LIMITATION • Act as a limitation on Commonwealth law-making power.


4 weaknesses of express rights

INFLEXIBLE As they are entrenched they are rendered inflexible as they can only be interpreted by the High Court but require a referendum for any significant changes to be made
LIMITED • Rights are very limited in nature given that we only have 5.
FAVOURITISM • Rights are mainly civil and political
COMMONWEALTH • Mainly relate to the actions of Commonwealth Parliament; does not necessarily safeguard against the actions of State parliaments.


Implied rights

A right that is not written in the Constitution and has been found to exist through High Court interpretation. There is one implied right, the right to freedom of political communication.

A landmark case in establishing the right was the ACT Case [1992]. The High Court decided that representative democracy is constitutionally entrenched, under s.7 and s.24 of the Constitution. Thus, freedom of public discussion of political matters is essential to allow the people to make political judgments and effectively exercise their right to vote.


2 strengths of implied rights

DISCOVER The High Court is able to discover further implied rights so it isn’t limited by the words of the Constitution.
BROAD The Constitution can be interpreted broadly to extend to a wide variety of circumstances.


2 weaknesses of implied rights

LIMITATION The High Court can only discover further implied rights when an appropriate test case comes before them.
INDEPENDENCE The High Court can effectively change implied rights and structural protections (that exist by virtue of certain sections of the Constitution) without public vote, thus potentially jeopardising the democratic system


Roach v Electoral Commissioner [2007] HCA 43

Vicki Lee Roach was serving a six year term of imprisonment in a Victorian prison. She challenged the validity of the 2006 amendments made to the Electoral Act 1918 (Cth). The amendments prohibited all prisoners who were serving a sentence of imprisonment for a Commonwealth, state, or territory offence from voting in federal elections. Prior to this amendment, only prisoners serving a sentence of 3+ years were excluded.


Roach v Electoral Commissioner [2007] HCA 43

In a majority decision (4:2) the High Court held that the 2006 amendment that imposed a complete ban on voting rights for all prisoners was invalid and unconstitutional, as it was inconsistent with the principle of representative government. Sections 7 and 24 of the Constitution require that Senators and members of the House of Representatives must be directly chosen by the people.


Sophie is a Legal studies student who has drawn the following conclusions about the protections that the Constitution offers:
• Structural protections directly protect rights.
• Our one implied right is written down somewhere in the Constitution.
• Express rights are enumerated and can be amended like regular legislation.

Outline why these statements are incorrect.

The first statement is incorrect because structural protections are structures and mechanisms that indirectly protect rights, as they do not directly confer rights onto individuals. Secondly, implied rights have been found to exist by High Court interpretation and as such are not written in the Constitution. Lastly, while express rights are in fact enumerated they can only be removed/amended via process of referendum.


Roach v Electoral Commissioner [2007] HCA 43

Exclusive powers are a subset of specific powers and are established under sections 51 and 52 of the Constitution. These powers are only exercisable by the Commonwealth Parliament; no other parliament has power in these areas. Residual powers, on the other hand, are not stated in the Constitution and unlike exclusive powers rest solely with the states.


4 ways in which rights are protected in Australia

Common law
Statute law
International treaties
Constitutional protection


Common law protection of rights

Many criminal offences have developed through common law, for example murder and rape - protect the right of security, arson and theft protect the right to own property. The MABO case gave the right to native title.


Statute law protection of rights

Anti discrimination legislation, equal opportunity act 1995 (vic) and the human rights and equal opportunity act 1986 (cth)


s.80 high court interpretation

The high court stated that an accused person cannot elect to have a trial by judge alone for a commonwealth offence.

Majority verdicts cannot be used for commonwealth offences. In all commonwealth offences the jury verdict must be unanimous.


S.92 high court interpretation

That this freedom primarily relates to trade, commerce and communications.

The the protection is given to the movement of people, the transport of goods, the transmission of communications, the passage of signals of any kind and any other means by which interchange, converse and dealings between states in the affairs of are carried across state boundaries.

S.92 does not provide an absolute guarantee of freedom of movement.


4 strengths of Commonwealth Constitution as a means of protecting rights

Preserving justice
Structural protections
Section 128



Express rights cannot be changed unless through a referendum; that is, with the support of the community.


Preserving justice

The implied right of freedom of political communication has been found to be contained in the Constitution, showing that rights can be declared and clarified by the High Court when needed to preserve justice.


Structural protections

The Constitution offers structural protection of rights in that there must be a responsible government answerable to the lower house, there must be a representative government that can be voted out of office if it does not listen to the wishes of the people, there is contained in the Constitution a limited right to vote, the separation of powers provides an independent High Court that is the final arbiter on government actions and abuse of power, and the Crown provides the ultimate safety check on the operation of the government.


Section 128

Section 128 means that it is hard to remove the rights that are protected under the Constitution and new rights can be added by a successful referendum.


Implied right creation

Australian Capital Television Pty Ltd v. The Commonwealth (1992) (The Political Advertising Case) found there was an implied right to freedom of political communication contained in the Commonwealth Constitution.

The case dealt with Commonwealth legislation that banned all political advertising on radio and television during election periods; that was the Political Broadcasts and Political Disclosures Act 1991 (Cth). This legislation allowed some free advertising to those political parties that already had members of parliament. However, it did not allow either free or paid time on television and radio to anyone else who had a political comment they wanted publicised. The High Court held that the legislation was invalid because it overrode an implied constitutional right to freedom of political communication.

The reasons for the decision varied among the justices, but in general terms it was linked to the notion of representative government. The justices all indicated that the Constitution established a system of representative government, and that representative government could only operate properly if there was freedom for people to communicate about political issues. Otherwise, people would not be fully informed when making choices about who should be elected to government.


Roach case

In 2006, the Commonwealth Parliament passed the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth), which prohibited prisoners from voting in elections. Before this Act, prisoners who were serving sentences over three years were banned from voting; the 2006 Act extended this ban so that no prisoners were able to vote.

Vicki Lee Roach challenged the constitutional validity of the 2006 Act and previous Act in the High Court in Roach v. Electoral Commissioner (2007) 233 CLR 162.

The High Court found that the 2006 Act was unconstitutional because S7 and S24 of the Commonwealth Constitution requires that parliament be chosen ‘directly by the people’, The right to vote could only be limited if it is thought necessary to preserve representative government. Chief Justice Gleeson stated that the right to vote could still be removed for serious criminal misconduct, therefore the 2004 legislation was valid. However, it was unconstitutional for all sentenced prisoners to be denied the right to vote.

The outcome of this case is that Australians have been given the structural protection to the right to vote because of representative government.

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