U4 AO2 1a lesson 12: constitution as check on cwth parli Flashcards
express rights (15 cards)
express rights
rights that are explicitly stated and guaranteed within the constitution
express rights list
Acquisition of property on just terms
Freedom of religion
No discrimination based on state of residence
Trial by jury for Commonwealth indictable offences
Freedom of interstate trade and commerce shall be free
express rights: Acquisition of property on just terms
Under (S51 xxxi) , Cth can acquire (take) property from any State or person for any purpose that falls within the scope of its lawmaking powers.
Additionally,
If the Cth enacts this power, it must do so in ‘just terms’ to the owner = provide
fair and reasonable compensation.
express rights: No discrimination based on state of residence
S117 of the Constitution states that it cannot create or apply laws in
a discriminatory manner based upon an individuals’ state of residence.
express rights: Trial by jury for Commonwealth indictable offences
Under Section 80 of the Constitution, all Commonwealth indictable offences must be tried before a jury should the accused plead not guilty.
The decisions of jurors must be unanimous for the accused to be found guilty
cwth indictable offences eg
These offences include trafficking commercial quantities of drugs, slavery, human trafficking etc.
express rights: Freedom of religion
Under Section 116 of the Constitution, Cth shall not make laws for establishing any religion or imposing any religious observance, or prohibiting free exercise of any religion and, no religious test shall be required for qualification of any office under Cth.
express rights: Freedom of interstate trade and commerce shall be free
Under Section 92 of the Constitution, the parliament and states cannot restrict the flow of trade and movement of goods between states.
how express rights act as check on parli pwrs
they cannot be deleted or amended by judges or parliament.
The only way wording from the Constitution can be changed is via a successful referendum (S128).
High Court judges are also the only bodies that can apply meaning to words within the Constitution=
statutory interpretation.
Express rights are legally enforceable
strength of express rights as check on parli: successful referendum.
- Express rights are enshrined in the Constitution and can only be changed through a successful referendum. As referendums are rare and difficult to pass, this safeguards the presence of rights within the Constitution
strength of express rights as check on parli: fully enforceable by the High Court
Express rights are fully enforceable by the High Court meaning if legislation is created the breaches an express right, an individual with standing can take the case to the High Court where it may be deemed invalid/ultra vires
strength of express rights as check on parli : political independence
- The HC is independent of the executive and legislature which means it has political independence to safeguard the rights of the Australian people without fear of political backlash within party groups
weakness of express rights as check on parli : referendum
Given that a referendum is required to add additional rights to the Constitution, it is unlikely, or very rare, that new rights will be added to the Constitution as referendums are costly, time-consuming, and rarely pass
weakness of express rights as check on parli : parli
There is no mechanism for preventing parliament from passing a law that is constitutionally invalid or breaches express rights in the first place.
Therefore, laws can be established that infringe upon express rights, which will be enforced until a case is brought before the HC, where the Act may be deemed invalid.
weakness of express rights as check on parli : individual with standing
- To challenge a law in the HC, a case must be brought by an individual with standing. Considering this requirement along with the cost and time it takes, a challenge to a matter in the HC, this may limit certain individuals from initiating a claim
