Unit 3 AOS 2- Protection of Rights Flashcards Preview

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What is Constitutional Protection

Constitutional protection is the means which rights are protected by the Constitution such as rights covered by structural protection, the structure and text of the Constitution provides some rights, such the limited right to vote. Express rights and implied rights are also considered to be Constitutional protections.


What are express rights?

Express rights are rights written into a rights document. If these are a part of a Constitution, then they are considered to be entrenched, such as Australia’s are. Express rights in Australia can only be changed via a referendum. There are five express rights that Australia obtains and all of these are entrenched within the Constitution. The five Australian express rights are listed below.


What is the express right that relates to Section 51 (xxxi)

This section and express right is regarding acquisition of property on just terms provides that the Commonwealth Parliament may make laws to acquire property from individuals ‘on just terms’. Although this section may appear to recognize the right of individuals to own property, it also recognizes that there may be a reason why parliament needs to acquire.


What is the express right that relates to Section 80

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.


What is the express right that relates to Section 92

This section 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’.


What is the express right that relates to Section 116

This section provides for freedom of religion, and is consisted of four parts. This express right states that the Commonwealth shall not make a law establishing any religion. Furthermore that the High Court determined that the Commonwealth, although they can’t establish a particular religion, they can assist the practice of religions by providing financial assistance to religious schools.


What is the express right that relates to Section 117

This section 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’. Essentially this express right is regarding that all state residents need to be treated the same, and making it unlawful to discriminate against a person based on the fact that they live in another state.


What are implied rights

Implied rights are rights that are not expressly written in the Constitution, but have been read into or implied in the Constitution by its structure and text, Australia has only one implied right. The High Court has found that the Constitution contains the implied right to freedom of political communication.


Case in regards to Implied Rights

This right was established due to a case in 1992 known as the Australian Capital Television (Pty) Ltd v. The Commonwealth (1992) (Cth) and is more commonly known as the Political Advertising Case. The case was regarding Commonwealth legislation that banned all political advertising on radio and television during election periods, and did not allow anyone who had a political comment that they wanted to publicize to do so (other than those political parties that already had members of Parliament). The High Court found this legislation to be invalid as it overrode an implied Constitutional right to freedom of political communication.
The High Court gave reasoning that was based on the notion of representative government and this could only operate successfully if there was freedom for people to communicate about political issues, otherwise they will not be adequately informed when making choices as to who should be elected.
Talk about impact more?


What are structural Protections?

The structures incorporated in the Constitution provide mechanisms to prevent the power of the government being concentrated in the hands of a few and aiming to prevent the use of power; these are known as structural protections. Some examples of structural protection are representative government, responsible government and the separation of powers.


Case that relates to representative government as a structural protection?

case known as the Roach v Electoral Commissioner (2007). Roach was challenging the Electoral Comissioners Act that was established in 2006 and it prohibited all convicted and sentences prisoners from voting in elections, when prior to this act prisoners that were serving a term less than three years were able to vote. The High Court found that the 2006 Act was unconstitutional, as the Constitution requires the government to be elected directly by the people. The outcome of this case is that Australians have been given the Constitutional protection to the right to vote due to the provision for representative government.


Similarities Between USA and AUS protection of Rights

-Australia and the United States are both federations of states as well as America have express rights that are entrenched, just as Australia does. Both countries the rights can only be altered removed or added by amending the Constitution.
-Both Australia and the United States have implied rights that is within their Constitutions. Australia has one implied right and that is the freedom to political communication, America has multiple implied rights and one of those being the right to privacy.
-Both have forms of structural protection that are seperation of powers and representative government.
-Individuals and groups can bring a complaint to both countries, to the Supreme Court (America) or the High Court (Australia) if they believe that an Act has infringed their rights that have been set out for them either in the Bill of Rights (America) or the Constitution (Australia)


Case that explains Americas implied right

This right of privacy was established by a case Griswold v Connecticut (1965). A doctor had been arrested for giving information about contraception to a married couple, which was against state law at the time. However the Supreme Court overturned the Connecticut law founding that it infringed the right to privacy. Another case went on to further extend this right that is known as the Rowe v. Wade case. This case extended the right to cover the relationship between patient and doctor, and that the discussions between them were private matters. It was in this case that the court found that the right of privacy was implied in the 14th amendment.


Differences in the protection of rights USA vs AUS

-America obtains a Bill of Rights listed within the Constitution where their rights lay and Australia’s are simply in sections of the Constitution.
-Australia and America both obtain express rights the extent of this express rights is a difference between the two nations. The list of express rights that America has is far more extensive then the ones Australia occupies.
-The process of changing the Constitution differs for both countries. Changing the US Constitution is a longer and more complex than Australia.
-The concept of responsible government does not apply in the US. The US president is elected separately and is not apart of Congress and neither is the cabinet that the president selects. Therefore neither the Cabinet of President are responsible to Congress.