Unit 3 AOS2b - Chapter 4: Protection of Rights Flashcards Preview

Unit 3/4 Legal Studies > Unit 3 AOS2b - Chapter 4: Protection of Rights > Flashcards

Flashcards in Unit 3 AOS2b - Chapter 4: Protection of Rights Deck (105):
1

When can a parliament override a right protected in a bill of rights?

With due consideration being given to the right before changes are allowed to take place. Some bills of rights contain a limitation clause. For example, in the Canadian Charter of Rights and Freedoms there is a limitation clause stating that ‘rights are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’.

2

What does the bill of rights differ according to?

. The extent of rights protected
. The way the rights are enforced
. The impact of judicial review
. Whether bills need to be scrutinised before they are passed through parliament to see if they will infringe any rights
. What guidance is given to courts for interpreting the protected rights

3

What is unique about Australia's constitutional protection of rights?

Australia is the only western nation that does not have a national bill of rights. In Australia, rights are mainly protected by the legislation and common law approach. However, there are some rights protected under the constitution.

The means the rights protected by our Constitution include:
. rights covered by structural protection – the structure and text of the Constitution provides some rights, such as the limited right to vote
. express rights in the Commonwealth Constitution – there are five express rights protected in
the Constitution, including the right to freedom of religion
. implied rights in the Commonwealth Constitution – rights may be implied in the Constitution or have been implied in a High Court decision, such as the right to freedom of political communication.

4

What is a bill of rights?

A document that describes the extent of individual democratic and human rights.

5

What is a constitution?

The Commonwealth of Australia Constitution Act 1900 (UK), which came into force on 1 January 1901; a set of rules or principles guiding the way the nation is governed. States have their own separate constitutions.

6

What is the separation of powers?

This refers to the division of power into three branches, being legislative, executive and judicial powers. The legislative and executive powers are combined at a federal level, whilst judicial powers remain independent. This prevents one body from having all power and therefore helps protect individual rights as it provides checks and balances.

7

What is a statutory or un-entrenched bill of rights?

A bill of rights that is part of an act of parliament, and can be changed by amending the act of parliament.

8

What are ultra vires?

Law that is beyond the legal power or authority of the body that created it.

9

What is a right?

An interest recognised and protected by the law, respect for which is a duty, and disregard for which is wrong.

PG Osborn, A Concise Law Dictionary, 2005

10

What is a high priority for people living in a democratic society?

The protection of rights.

11

Where are the most basic human rights (that should be protected) set out?

They are set out by the United Nations in the 1948 Universal Declaration of Human Rights.

12

What rights does the 1948 Universal Declaration of Human Rights set out?

. right to freedom from discrimination
. protection from unlawful detention
. a presumption of innocence when charged with a criminal offence
. protection from inhuman or degrading punishment
. right to marry and own property
. freedom of religion, conscience and political expression

13

Why is it necessary for the law-makers in Australia to protect rights through legislation and common law?

There are many international treaties that set out in more detail the sorts of rights that ought to be protected. However, the rights set out in the international treaties that Australia has signed do not automatically become part of Australian law.

Some countries, such as the United States, have constitutions that contain a bill of rights, which protects the rights of their citizens.

14

What are the four ways in which our rights in Australia are protected?

1. Common law (Judge-made law) (can include enforcement)
2. Statue law
3. International treaties
4. Constitutional protection (structural protection, express rights and implied rights)

14

Explain the following way in which rights are protected in Australia: Common law

This refers to judge-made laws. Many of our criminal offences and defences have been developed through common law. For example:
. Murder and rate laws protect our right to security
. Arson and theft laws protect our right to own property
. Mabo Vs Queensland case gave the right to Native Title

14

Explain the following way in which Australian rights are protected: Statute law

This refers to laws created by parliament. There are many acts of parliament that protect our rights including the:
. Equal Opportunity Act 1995 (Vic)
. And the Human Rights and Equal Opportunity Act 1986 (Cth)

Both protect our right to no discrimination

Human rights are mostly protected by acts of parliament.

14

How are the majority of rights created?

Through acts of parliament or common law.

15

What are statutory rights?

Statutory rights are contained in a bill of rights set out in a statute (or Act of parliament), which contains rights that can be amended or repealed by parliament. These are express rights but are not entrenched in a constitution. Parliament is a supreme law-making body; that is, a law-making body that prevails over all other sources of law, and therefore the bill of rights cannot be overridden by a court or regulation but can be amended by parliament.

This is an adopted approach in New Zealand, Victoria and the ACT

16

Explain the following way in which our rights are protected in Australia: International treaties

For example the Universal Declaration of Human Rights, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment protects the rights or prisoners of those being detained by authorities.

However, they don't become enforceable in a country unless made into a law by parliament.

18

Describe the following express right in Australia: free interstate trade and commerce/freedom of movement

S92 provides that "on the imposition of uniform duties of customs, trade, commerce and intercourse among states, whether by means of internal carriage of ocean navigation, shall be absolutely free."

High Court interpretations have found that this freedom primarily relates to trade, commerce and communications.

18

What does the express right freedom of movement/interstates trade and commerce protect?

It protects our trading between states as it ensures that there are no tariffs for interstate trade, meaning interstate trade can occur freely and easily.

19

Explain the following way in which our rights in Australia are protected: Constitutional protection

This include:
. rights covered by sections of structural protection
- representative government (right to vote - limited, but exists)
- responsible (ensures citizens are governed by a government that has the confidence of the elected lower house)
- separation of powers (provides checks and balances)

. 5 express rights
. 1 implied right

21

Explain the following form of constructional protection: Express/explicit rights

These rights are also known as explicit rights and written into rights documents. If these are part of a constitution, then they are entrenched, meaning they cannot easily be changed. The process for changing any of these rights is laid down in the relevant constitution and this process must be followed by present and future governments (express rights are usually changed by a referendum).

This is an adopted approach in the U.S., Canada, South Africa and Australia

22

Explain the express rights in the Australian commonwealth constitution.

The Commonwealth Constitution clearly sets out five express rights (explicit rights). These express rights are entrenched in the Constitution. This means they can only be removed from the Constitution by amending the constitution using the referendum procedure established in S128.

Rights that exist in common law, and rights created by legislation, can be abolished at any time by the commonwealth parliament legislating to override them.

22

Describe the following express right in Australia: not to be discriminated against on the basis of state you reside

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. However, it does not provide a general protection against discrimination.

23

What does the express right of no discrimination on the basis of state protect?

This protects people from being worse off in another state due to discrimination for coming from a different state.

24

What are the five express rights in the commonwealth countries constitution?

The right to:
. Freedom of religion (S116)
. Free interstate trade and commerce (S96)
. Not to be discriminated against on the basis of the state where you reside (S117)
. Acquisition of property on 'just terms' (S51(xxxi))
. Trial by jury for indictable Commonwealth offences (S80)

These rights tend to be expressed as limits on the Commonwealth Parliament, rather than as positive rights for individuals. These five rights are protected because the parliament cannot pass legislation that infringes or goes against the protected rights.

25

Describe the following express right in Australia: the right to acquisition of property on just terms

S51(xxxi) provides that the commonwealth parliament may make laws to acquire property from individuals on "just terms." Although this section may recognise the right of individuals to own property, it also recognises that there maybe be a reasons why parliament needs to acquire property from individuals.

26

What does the express right of acquisition of property on "just terms" protect?

It protects people's ability to not allow the commonwealth to acquire their property as it is clear through High Court interpretations that:
. The commonwealth parliament must be able to show "just terms", therefore fair and reasonable levels of compensation must be provided.
. This means people can argue that just terms have not been met.

27

Describe the following express right in Australia: the right to trail by jury for indictable commonwealth offences

Under S80 of the Constitution, there must be a jury trial for indictable Commonwealth offences. The High Court has found that a decision of a jury in such a trial must be unanimous. However, S80 provides only a limited right to trial by jury for two reasons.
. Most indictable offences are crimes under state law, and S80 only applies to Commonwealth
offences.
. The High Court has ruled that indictable means ‘crimes tried on indictment’. Therefore, the government can avoid S80, and thus avoid a jury trial for even the most serious offences, by declaring that the offence is a summary offence, rather than an indictable offence to be tried on indictment. (This is unlikely but could occur for something such as acts of terrorism.)

28

What does the express right of trial by jury protect?

It protects our right to be judged by a cross section of the community instead of a single judge which may not .....

29

Describe the following express right in Australia: freedom of religion

S116 provides for freedom of religion. This section consists of 4 parts. The commonwealth cannot not make a law that:
. establishes a state religion (cannot declare a particular religion as the official national religion, but can assist the practice of them through financial assistance - High Court case)
. imposes any religious observance (limited by national security)
. prohibits the free exercise of any religion (that is, prevents people from practising their religion)
. requires a religious test as a requirement for holding any Commonwealth office (religion belief not necessary to be appointed in a government office).

30

What does the express right freedom of religion protect?

It protects the right of people to have their own beliefs as it ensures that the commonwealth parliament has limits on its legislative power in terms of religion.

However, S116 on applies to the commonwealth parliament and few states constitutions actually recognise religious freedom. Theoretically some states have the power to dictate what religion we should have.

31

What was the High Court case in 1992 that recognised the implied right of political communication?

Australian Capital Television Pty Ltd v. The Commonwealth (1992)

32

Explain the Australian Capital Television Pty Ltd v. The Commonwealth (1992) case.

. This is know as the political advertising case.
. This case dealt with Commonwealth legislation that banned all political advertising on radio and television during election periods (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.

33

What cases confirmed the right to political commutation

Theophanous v. Herald and Weekly Times Limited (1994) 182 CLR 104 and Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520 have confirmed the existence of the right to political communication. The Theophanous case extended the implied right to allow comments about members of parliament and their suitability for office. The Lange case (see the case study following Learning activity 4.3) went further, stating that the right to freedom of political communication exists at all times, not just prior to an election. This right is not a general right to free speech, but only a right to free communication on matters relating to political issues.

34

What is an entrenched right?

These are rights which can only be changed using the particular methods set out in a constitution. Therefore they cannot be changed by any normal act of parliament.

35

What 2 High Court cases that confirmed the existence of the right to political communication?

. Theophanous v. Herald and Weekly Times Limited (1994) 182 CLR 104
. and Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520

39

Explain the following form of constitutional protection: implied rights

These are rights which are read into a constitution by implication because they are not expressly referred to. Whilst the right to freedom of speech is not stated in the constitution, the High Court has determined that the Constitution contains the implied right to freedom of political communication.

39

What is the implied right of free political communication?

. It allows the free discussion or debate of public affairs and political matters as it established how essential it is to the system of representative government.
. The constitution provides for an elected and representative government, it implies the need for free debate so that the vote is informed and the representative government is effective.

41

What was the decisions of the Australian Capital Television Pty Ltd v. The Commonwealth (1992) case.

The High Court held that the legislation was invalid because it overrode an implied constitutional right to freedom of political communication. This decision 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.

42

What did Theophanous v. Herald and Weekly Times Limited (1994) case do?

The Theophanous case extended the implied right to allow comments about members of parliament and their suitability for office.

42

What did the Lange v. Australian Broadcasting Corporation (1997) case do?

The Lange case went further the Theophanous case as it stated that the right to freedom of political communication exists at all times, not just prior to an election. This right is not a general right to free speech, but only a right to free communication on matters relating to political issues.

43

Explain the following form of constitutional protection: structural protection of rights

The structural protection of rights refers to the protection of rights contained in the structure and text of the Commonwealth of Australia Constitution Act 1900 (UK).

This is achieved because it contains mechanisms for the indirect protection of the rights of Australians in their dealings with the Commonwealth Parliament by preventing the abuse of power.

43

Explain the Lange case.

. In 1996, David Lange (previous prime minister of New Zealand) brought defamation proceedings against the Australian Broadcasting Corporation (ABC) for comments made about him on the current affairs program Four Corners.
. Defamation is the communication of a statement that makes a claim about a person or business, stated or implied, that is injurious to the reputation of the person or business referred to in the claim.
. The ABC used the defence that there exists in the Australian Commonwealth Constitution an implied right of freedom of political communication.

44

What was the result of the Lange case?

The High Court confirmed the right to political communication. However, they went further because the extended the right to freedom of political communication to any time, not just before an election. This was seen as essential for the system of representative government that is provided for in the Constitution.

47

What do Australia's constitutional principles do?

These three constitutional principles underlie our democratic system of government and provide checks and balances to prevent the abuse of power and thereby indirectly protect human rights.

48

Explain the following constitutional principle: separation of powers

. The separation of powers is a principle which involves branching power in three different ways, being executive, legislative and judicial power.
. This principle is in place to ensure no one body has the power to make (legislative), enforce (executive) and adjudicate a breach (judicial) in the law.

48

What are the mechanisms (constitutional principles) part of the structural protection of protection of rights?

. Bicameral parliament
. Separation of powers
. Responsible government
. Representative government

50

What are executive powers?

This refers to the power to administer the laws and manage the business of government. This in vested in the governor-general as the Queen’s representative) in theory, however, it is exercised by the prime minister, senior ministers and government departments in practice.

50

Explain the following constitutional principle: a bicameral system

This means there are two Houses of Parliament. It allows for the Senate to act as a house of review for the House of Representatives.

51

What are legislative powers?

This refers to the power to make laws, which resides with the parliament as provided under Chapter I of the Constitution.

52

What are judicial powers?

This refers to the power given to courts and tribunals to enforce the law and settle disputes provided under Chapter III; this is vested in the High Court and other federal courts.

54

What does the principle of separation of powers do?

It prevents power from being concentrated in one set of hands and helps to protect individual rights by providing checks and balances on the power of the Commonwealth Parliament.

No one body can make law, administer law and also rule on its legality.
The law-making powers given to the Commonwealth Parliament are laid down in the Constitution.

If the Commonwealth Parliament oversteps these powers and makes laws outside its jurisdiction, the High Court can (if a case is brought before them) declare that a law is unconstitutional, and therefore inoperable. However, High Court justices are appointed by the government and the composition of the High Court can affect decisions that are made.

54

Explain the following constitutional principle: responsible government

This refers to the executive governments (PM, Senior M's and Gov Departments) accountability to parliament and means a government can only continue to govern when it has the support of the lower House of Parliament. If the government loses the support of the lower house then it must resign.

Section 53 of the Constitution gives legal recognition for the principle of responsible government.

54

What does the notion of responsible government protect?

The notion of responsible government therefore protects the right of citizens to be governed by a government that has the confidence and support of the elected lower house. This protects against the possibility of a government abusing its power.

54

Explain the following constitutional principle: representative government

This refers to a government that represents the views of the majority of people. As a result, the government needs to maintain the support of the people, otherwise they will not be reflected during the next election.

. S7 of Constitution - senators for each state shall be directly chosen by the people.
. S24 of Constitution - members of the H.o.R. shall be directly chosen by the people.
. S8 and 30 - each elector shall only vote once (further emphasise the ideal of representative government)

54

What does the notion of representative government protect?

Representative government therefore protects the right of the people to be governed by the people of their choosing (or that of the majority).

Direct election by the people of their political representatives gives the people the right to expect that those representatives will represent their needs in parliament as much as possible.

If a government begins to ignore the needs and wishes of the majority of people, it is likely it will be voted out of office at the next election.

55

What are the three approaches used to enforce rights in Australia?

. Interpretive approach
. Watchdog approach
. Complaints-based approach

55

Explain the following method used to enforce bills of rights: interpretive approach

The role of the High Court in constitutional cases is to hear cases brought before it and to interpret the words in the Constitution.

Constitutional, statute and common law rights are fully enforceable by the High Court, therefore the High Court is able to declare laws invalid if it violates any of these rights. This is called the court-based approach.

55

What is orbiter dictum?

Statements on the side made by judges which are not part of a reason for a decision.

55

How does a representative government protect our right to vote?

It provides/protects our limited right to vote because Section 41 (the section granting the right to vote) meant that to anyone who could vote in state elections in 1902 could vote in federal elections, however today that would mean only those aged 137 and over can vote.

It was found that the Constitution does, however, provide a limited implied right to vote under S7 and S24. As these acts state the Senate and H.o.R shall be composed of members directly chosen by the people’.

These words restrict the Commonwealth Parliament from passing legislation that would interfere with the right to vote.

55

Explain how the crown provides the ultimate safety check on the operation of government.

Under reserve powers (not expressly listed in the Constitution), the Queen’s representative (the governor-general) is able to dismiss a government that is not acting in accordance with the Constitution.

55

What Australian case questioned prisoners right to vote?

The Vickie Lee Roach case

55

How did the Roach case arise?

It arose as a result of the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth). This act prohibited prisoners from voting in elections, whilst the original act allowed prisoners serving a sentence of three years or less to vote in federal elections.

55

What are the facts of the Roach case?

At the time of the legislation being passed, Vicki Lee Roach was in prison and had become one of the 20,000 prisoners in Australia to be impacted by this Act.

Roach decided to challenge the validity of this act and the previous act as it restricted their right to vote (which is assumed under S7 and S24 of the constitution).

55

What was the result of the Roach case?

The High Court agreed that the 2006 act was inconsistent with the system of representative government established in S7 and S24 of the constitution. However, they decided that the right to vote could be removed for prisoners who have committed serious criminal misconduct, meaning those serving. 3 years of less got their right to vote back.

56

Explain the following method used to enforce bills of rights: watchdog approach

There also human right bodies (such as the Australian Human Rights Commission) who investigate legislation that may contravene with human rights. The commission can recommend to parliament that the law needs to be amended. This is known as the watch-dog approach.

56

Explain the following method used to enforce bills of rights: complaints-based approach

This involves individuals or groups, who believe their rights have been infringed, challenging laws before the High Court. The High Court then determines whether the law/s in question are valid or invalid. However, this does not provide a remedy for infringed rights.

How changes are made: courts can declare the law invalid.

56

Parliament legislating to incorporate rights into an act of parliament.

These Commonwealth laws are based on provisions set out in various international human rights treaties that Australia has signed. Examples of rights protected under Australian laws:
. Right to silence
. Right not to be questioned for longer than reasonable time
. Right to privacy

56

Common law establishing rights through precedent.

A case is brought to court and a decision is reached. The reason for the decision creates a precedent that is followed in the future. Many rights are protected by common law, including the right to silence.

57

What are the strengths of the protection of rights of Australians by the commonwealth constitution?

. Express rights cannot be changed unless through a referendum*
. The implied right of freedom of political communication has been found to be contained in the Constitution*
. The Constitution offers structural protection of rights (responsible government, representative government, separation of powers and bicameral system)*
. The express rights in the Constitution are enforceable through the High Court.*
. Leaving most rights to the legislators to protect means that they can be changed easily as the need arises.
. The courts can interpret legislation and the Constitution in a timely fashion as the need arises to avoid injustices.
. Section 128 (hard to remove entrenched rights + new rights can be added by a successful referendum)*

* = strengths I've decided to remember

58

Explain the following strength of the commonwealth constitution when protecting rights: The implied right of freedom of political communication has been found to be contained in the Constitution

Shows that rights can be declared and clarified by the High Court when needed to preserve justice.

Also explain what implied rights are and the implied right of political communication.

59

Explain the following strength of the commonwealth constitution when protecting rights: The Constitution offers structural protection of rights

. 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
. The Crown provides the ultimate safety check on the operation of the government.

60

Explain the following strength of the commonwealth constitution when protecting rights: The express rights in the Constitution are enforceable through the High Court

Any section of legislation that is found to be outside the power of the parliament under the Constitution is immediately inoperable to the extent of the section that is found to be ultra vires (outside the power).

61

Explain the following strength of the commonwealth constitution when protecting rights: Section 128

Section 128 means that it is hard to remove the rights that are protected under the Constitution (+ cannot be changed without public say) and new rights can be added by a successful referendum.

62

What are the weaknesses of the protection of rights of Australians by the commonwealth constitution?

. Rights contained in a constitution are difficult to change due to the referendum process*
. Very few rights are protected under the Constitution*
. The rights that are protected are limited in scope*
. The needs of minority groups may not be heard by the government and may not be catered for without a bill of rights.
. Using common law as a means of protecting rights depends on a case coming before the courts*
. The complaints-based approach (case must be brought before the court)
. If rights were protected under a bill of rights the High Court would have more power*

* = weaknesses I've decided to remember

63

Explain the following weakness of the commonwealth constitution when protecting rights: Rights that are protects structurally are limited in scope

for example, many rights only apply to the Commonwealth Parliament and not the state parliaments, and some rights are narrow, such as trial by jury.

64

Explain the following weakness of the commonwealth constitution when protecting rights: Rights contained in a constitution are difficult to change

This is due to the referendum process. Rights may lag behind when attitudes change and technology advances with time.

65

Explain the following weakness of the commonwealth constitution when protecting rights: Using common law as a means of protecting rights

Using common law as a means of protecting rights depends on a case coming before the courts, which is expensive and time-consuming.

66

Explain the following weakness of the commonwealth constitution when protecting rights: if rights were protected under a bill of rights the High Court would have more power

If rights were protected under a bill of rights contained in the Constitution, the courts would be called on to interpret the rights contained in the bill of rights, giving the judiciary more power and making the High Court justices the final arbiters of what rights should exist in society rather than the parliament, which is elected by the people.

67

Which country's protection of rights are you comparing to Australia?

The United States of America.

80

What are some obvious similarities between the U.S. and Australia?

. Both are assuming broader responsibility over matters of states law
. Both are a federation of states

82

What is different about the US rights?

The US Constitution contains a bill of rights in the amendments to the Constitution. The first 10 amendments (usually referred to as the Bill of Rights) were accepted in 1791.

84

What are the ways in which U.S. Constitution protects rights?

. Structural protection (separation of powers, representative government, protection from encroachment of rights by state and local governments -14th amendment)
. Express rights entrenched in the constitution
. Implied rights

(No responsible government)

85

Explain how the 14th amendment of the U.S. Constitution protects rights.

The US Supreme Court has found that the 14th Amendment prohibits state and local governments from encroaching on most of the civil liberties and rights in the US Constitution. The federal government can act on behalf of individuals against state and local governments.

86

Explain how the principle of separation of powers protects US citizens rights.

As in Australia, the principle of separation of powers protects US citizens’ rights. Under the principle of separation of powers in the US, the legislative, executive and judicial are kept separate at a federal level. One of the founding fathers, Thomas Jefferson, noted that the separation of powers in the Constitution of 1787 would limit the power of government and prevent any person or group from exercising power tyrannically.

In practice, the principle of separation of powers means that each arm of government can keep watch over the power of the others. The courts can ensure that the legislature and the executive do not abuse their power.

87

Explain how the principle of representative government protects US citizens rights.

Representative government is expressly guaranteed under the US Constitution. Sections 1, 2 and 3 of the US Constitution require that members of the Congress (consisting of the Senate and the H.o.R.) shall be elected by the people.

As is the case in Australia, the representative government that is achieved through this process can be voted out of office at the next election if they no longer represent the wishes of the people.

This process avoids the possibility of governments encroaching on the human rights of citizens.

The 18th Amendment of the US Constitution further promotes representative government by providing the right to vote to US citizens who are 18 years of age or older.

88

Why does the U.S. Not have the concept of responsible government?

The concept of a responsible government does not apply in the U.S. This is because the U.S. President it elect separately and is not part of the Congress. The president selects the cabinet which is also separate from congress, meaning the president and cabinet are not responsible to congress. It is possible for one political party to win the presidency without winning control in the lower house.

In Australia the term ‘responsible government’ applies to the people’s control of the lower house in that it is voted into office by the people. The government is elected by the people and if it loses the confidence of the people and the lower house of parliament it cannot govern.

89

Explain what rights are protected for US citizens.

Most of the rights set out in the U.S. Constitution are stated as restrictions on the power of the government. The rights in the constitution are mainly concerned with civil and political rights.

90

Explain how express rights protect the rights of U.S. citizens.

The U.S. constitution contains the Bill of Rights, which provides an ‘express rights entrenched in a constitution’ approach to the protection of rights.

The US Bill of Rights consists of the first 10 amendments of the US Constitution. The Constitution contains a comprehensive list of rights. It expressly provides for a range of individual rights considerably more extensive than in the Australian Commonwealth Constitution. The rights are fully entrenched and can only be removed by amending the US Constitution.

It protects individuals and groups against abuse of rights by both the federal and state governments.

91

What are some of the express rights in the U.S. Constitution/bill of rights?

1st Amendment: freedom of speech, press, religion and petition
2nd Amendment: right to keep and bear arms
3rd Amendment: conditions for quarters for soldiers
4th Amendment: right of search and seizure regulated
5th Amendment: provisions concerning prosecution
6th Amendment: right to a speedy and public trial
7th Amendment: right to trial by jury
8th Amendment: excessive bail, cruel punishment
9th Amendment: rule of construction of the Constitution
10th Amendment: rights of the states under the Constitution

92

Explain the following U.S. right: 1st Amendment: freedom of speech, press, religion and petition

This guarantees free speech, free press, right to peaceful assembly, freedom of religion and the separation of church and state and the right to petition the government for a redress of grievances.

93

Explain the following U.S. right: 2nd Amendment: right to keep and bear arms

This amendment provides for ‘a well regulated Militia, being necessary to the security of a free state, [and] the right of the people to keep and bear arms, shall not be infringed’.

94

Explain the following U.S. right: 8th Amendment: excessive bail, cruel punishment

This amendment provides protection from excessive bail being required, or excessive fines and cruel or unusual punishments being imposed (although this has not excluded capital punishment for adults).

95

Explain how implied rights protect US citizens.

This U.S. Supreme Court has read implied rights in the U.S. Bill of rights. For example in Griswald Vs Connecticut (1965) the Supreme Court found that legislation forbidding the giving Of advice on contraception for married people infringed an implied Constitutional right of privacy.

96

How are rights enforced in the U.S.?

. The U.S. Supreme Court determines the meaning and application of these rights. The rights protected in the constitution apply to the actions of both federal and state governments.
If a law is made that conflicts with the rights in the constitution, the courts may declare the law ins invalid.
. Individuals or groups can bring an action to the US Supreme Court claiming that their rights have been infringed by a law that contravenes the Bill of Rights (complaints-based approach). The party bringing the case must be directly affected by the offending legislation.
. A judicial decision is final and Congress cannot overrule this decision.

97

How can the U.S. Constitution be changed?

Rights in the Constitution can be amended through a joint resolution (both houses) of Congress approving an amendment by a two-thirds supermajority in each house. The amendment then needs the approval of three-quarters of the US state legislatures. There is no requirement that the states all consider the bill at the same time.

There can be a convention that the people do vote on a proposed changed too. It is called a convention to change the constitution.

98

What are the limitations of rights in the U.S.?

There are no limiting conditions requiring the courts to balance the rights contained in the Bill of Rights with any other rights. The only limitations could be the way the rights are interpreted by the US Supreme Court.

99

What are the similarities between the U.S. And Australia's approaches to protecting rights?

. Rights can be altered, removed or added by amending the Constitution
. The constitution includes implied rights
. Individuals and groups can bring a complaint that an Act infringes their rights set
. A court can find that a section of an Act is unconstitutional
. Rights are protected by the constitution and are fully enforceable by the courts
. Parliament can change or amend the offending Act
. Separation of powers exists as a safeguard against abuse of power by governments
. Constitutions contain structural protection of the right to representative government

100

Explain the following similarities between the U.S. and Australia's approaches to protecting rights:
. Rights can be altered, removed or added by amending the Constitution
. The constitution includes implied rights
. Individuals and groups can bring a complaint that an Act infringes their rights set
. A court can find that a section of an Act is unconstitutional

Rights can be altered, removed or added by amending the Constitution:
U.S. - the procedure is complex and rights are fully entrenched.
Aus - by amending the Constitution through a referendum. Rights contained in the Constitution are fully entrenched.

The constitution includes implied rights:
U.S. - eg. The right to privacy
Aus - eg. The right to freedom of political communication

Individuals and groups can bring a complaint that an Act infringes their rights:
U.S. - rights set out in the bill of rights
Aus - rights set out in the constitution

A court can find that a section of an Act is unconstitutional because it contravenes one of the express rights and therefore the relevant section of the Act is inoperable. (Same for U.S. and Aus).

101

Explain the following similarities between the U.S. and Australia's approaches to protecting rights:
. Rights are protected by the constitution and are fully enforceable by the courts
. Parliament can change or amend the offending Act
. Separation of powers exists as a safeguard against abuse of power by governments
. Constitutions contain structural protection of the right to representative government

Rights are protected by the constitution and are fully enforceable by the courts.That is, if the courts declare legislation invalid because it infringes a particular express right.
U.S. - congress cannot override a ruling
Aus - parliament cannot override a High Court ruling

Parliament can change or amend the offending Act. (Same for both)

Separation of powers exists as a safeguard against abuse of power by governments. (Same for both)

Constitutions contain structural protection of the right to representative government:
U.S. - U.S. constitution
Aus - Australian commonwealth constitution

102

What are the differences between the U.S. And Australia's approaches to protecting rights?

. Express rights
. Procedure of amending constitution
. Separation of powers
. Principle of responsible government
. Bill of rights

103

Explain the following differences between the U.S. and Australia's approaches to protecting rights: Express rights and procedure of amending constitution

Express rights:
U.S. - extensive
Aus - only five express rights specified in the Australian Constitution, plus the right to freedom of political communication, which the High Court has implied from the Constitution.

Procedure of amending constitution:
U.S. - very complex and can take a long time (process can spread over some years before a final result is known or the proposal expires).
Aus - S128 procedure (amendment can only occur after a successful referendum).

104

Explain the following differences between the U.S. and Australia's approaches to protecting rights: separation of powers, responsible government and bill of rights

Separation of powers:
U.S. - Executive powers, legislative powers and judicial powers are all separate.
Aus - Executive powers and legislative powers are combined but judicial powers are separate.

Responsible government:
U.S. - Does not apply as the president and cabinet are not responsible to Congress.
Aus - Does applies as the government can only continue to govern as long as it has the confidence of the lower house of parliament.

Bill of rights:
U.S. - The Bill of Rights applies to both federal and state legislatures and governments.
Aus - No bill of rights. Protected rights in the Constitution apply to the Commonwealth Parliament. Only some rights apply to state parliaments as well.