Protection of Rights
Outcome 2 part b
Chapter 4
Wednesday, 9 April 14
Key Knowledge
the means by which the Commonwealth Constitution
protects rights, including structural protection, express
r...
Rights defined
Right ~ an interest recognised and protected by law, respect for
which is duty, and disregard for which is ...
Rights defined
Right ~ an interest recognised and protected by law, respect for
which is duty, and disregard for which is ...
How are rights protected globally?
Express
Specifically listed in a document, or
Entrenched in a Constitution
Statutory ri...
Wednesday, 9 April 14
Australia’s Approach
No Bill of Rights
Mainly protected by legislation and common law approach
Wednesday, 9 April 14
Structural Protection
Separation of Powers
Responsible Government
Representative Government
The Crown
Wednesday, 9 April 14
Separation of Powers
Three separate law-making bodies
Legislative
Executive
Judicial
Helps to protect individual rights by...
Responsible Government
The executive (PM, senior ministers &
government departments) needs the support of
the lower house ...
Representative Government
Represents views of the majority of the people
Direct election by the people of their political
...
The Crown
Under the Queen’s
representative’s reserve
powers, a government may
be dismissed if believed not
to be acting in...
Right to Vote
Section 41 limited (outdated) protection of right to vote
The right to vote is not clearly stated in the Con...
Vicki Lee Roach - Right to Vote
Case
Read case study pp 168-169
Wednesday, 9 April 14
Vicki Lee Roach - Right to Vote Case
In the 2007 case of Roach v. Electoral
Commissioner, the High Court
concluded that Se...
Vicki Lee Roach - Right to Vote
Case
Wednesday, 9 April 14
Express Rights
Australia’s express rights are entrenched in the
Commonwealth Constitution
There are five express (entrench...
Five express rights in the Commonwealth
Constitution
freedom of religion (s116)
free interstate trade and commerce (s92)
n...
Implied Rights
Implied rights are those rights not expressly or
explicitly written in the Constitution
Implied by the stru...
Political Communication an
implied right
The right to freedom of speech is not stated in
the Constitution
High Court has d...
Political Advertising Case
Wednesday, 9 April 14
Australia’s Approach to the Enforcement
of Rights
Constitutional rights enforceable by the High Court
High Court can decla...
Rights Protected by Acts or Common Law
Most of human rights in Australia are
protected either by Acts of Parliament or
thr...
Evaluation
How well does Australia Protect Rights?
Approach to the recognition of rights
Nature of the rights protected
En...
Approach to the recognition of rights
Explicit rights are entrenched in the
Constitution and cannot be
removed except by r...
Nature of the rights protected
Explicit rights are mainly civil and
political rights
There is an implied right to freedom
...
Enforcement
Explicit rights and implied rights
are fully enforceable by the High
Court, which can invalidate
legislation t...
Statutory Interpretation
High Court interprets the meaning
and application of those rights
expressed in the Constitution t...
United States - Protection of Rights
See Case File Handout
Wednesday, 9 April 14
Comparison
AUS v. US
Wednesday, 9 April 14
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Protection of rights

  1. 1. Protection of Rights Outcome 2 part b Chapter 4 Wednesday, 9 April 14
  2. 2. Key Knowledge the means by which the Commonwealth Constitution protects rights, including structural protection, express rights, implied rights the significance of one High Court case relating to the constitutional protection of rights in Australia Australia’s constitutional approach to the protection of rights and the approach adopted by America Wednesday, 9 April 14
  3. 3. Rights defined Right ~ an interest recognised and protected by law, respect for which is duty, and disregard for which is wrong. UN 1948 Universal Declaration of Human Rights Wednesday, 9 April 14
  4. 4. Rights defined Right ~ an interest recognised and protected by law, respect for which is duty, and disregard for which is wrong. UN 1948 Universal Declaration of Human Rights Wednesday, 9 April 14
  5. 5. How are rights protected globally? Express Specifically listed in a document, or Entrenched in a Constitution Statutory rights Bill of Rights identified in a act of parliament (statute) Rights protected by legislation and common law Acts of Parliament Wednesday, 9 April 14
  6. 6. Wednesday, 9 April 14
  7. 7. Australia’s Approach No Bill of Rights Mainly protected by legislation and common law approach Wednesday, 9 April 14
  8. 8. Structural Protection Separation of Powers Responsible Government Representative Government The Crown Wednesday, 9 April 14
  9. 9. Separation of Powers Three separate law-making bodies Legislative Executive Judicial Helps to protect individual rights by providing checks and balances on the power of the Commonwealth Parliament Protects against abuse of power by one body Wednesday, 9 April 14
  10. 10. Responsible Government The executive (PM, senior ministers & government departments) needs the support of the lower house to continue to govern Protects the rights of citizens to be governed by a government that has confidence and support from the elected lower house Protects against abuse of power by government Wednesday, 9 April 14
  11. 11. Representative Government Represents views of the majority of the people 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 Protects against a government ignoring the people’s wants and needs Wednesday, 9 April 14
  12. 12. The Crown Under the Queen’s representative’s reserve powers, a government may be dismissed if believed not to be acting in accordance with the Constitution Wednesday, 9 April 14
  13. 13. Right to Vote Section 41 limited (outdated) protection of right to vote The right to vote is not clearly stated in the Constitution, however: Section 7 The Senate The Senate shall be composed of senators for each state, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate Section 24 Constitution of House of Representatives The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth..... Wednesday, 9 April 14
  14. 14. Vicki Lee Roach - Right to Vote Case Read case study pp 168-169 Wednesday, 9 April 14
  15. 15. Vicki Lee Roach - Right to Vote Case In the 2007 case of Roach v. Electoral Commissioner, the High Court concluded that Section 7 and 24 of the Constitution included the concept of adult suffrage - the right to vote The High Court determined that because representative government has evolved since Federation to include universal adult suffrage, today Section 7 and 24 include ‘a constitutional protection of the right Wednesday, 9 April 14
  16. 16. Vicki Lee Roach - Right to Vote Case Wednesday, 9 April 14
  17. 17. Express Rights Australia’s express rights are entrenched in the Commonwealth Constitution There are five express (entrenched) rights identified They are more so restrictions on Commonwealth law-making power, rather than rights for individuals Wednesday, 9 April 14
  18. 18. Five express rights in the Commonwealth Constitution freedom of religion (s116) free interstate trade and commerce (s92) not to be discriminated against on the basis of the state where you reside (s117) receive ‘just terms’ when property is acquired by the Commonwealth (s51(xxxi)) trial by jury for indictable Commonwealth offences (s80) Wednesday, 9 April 14
  19. 19. Implied Rights Implied rights are those rights not expressly or explicitly written in the Constitution Implied by the structure of the Constitution The only implied right in Australia concerns Political Communication Wednesday, 9 April 14
  20. 20. Political Communication an implied right The right to freedom of speech is not stated in the Constitution High Court has determined that the Constitution has an implied right to freedom of communication on political matters Recognised in the case of Australian Capitial television Pty Ltd v. Commonwealth (1992) aka Political Advertising Case Wednesday, 9 April 14
  21. 21. Political Advertising Case Wednesday, 9 April 14
  22. 22. Australia’s Approach to the Enforcement of Rights Constitutional rights enforceable by the High Court High Court can declare a legislation invalid if found to impact on Human Rights Wednesday, 9 April 14
  23. 23. Rights Protected by Acts or Common Law Most of human rights in Australia are protected either by Acts of Parliament or through Precedent Wednesday, 9 April 14
  24. 24. Evaluation How well does Australia Protect Rights? Approach to the recognition of rights Nature of the rights protected Enforcement Statutory Interpretation Wednesday, 9 April 14
  25. 25. Approach to the recognition of rights Explicit rights are entrenched in the Constitution and cannot be removed except by referendum Implied rights have been interpreted by the courts and reflect the capacity of the Constitution to meet the changing needs and values of our society The number of rights entrenched is very limited. The referendum process required to alter these rights, or to entrench other rights is rarely successful Implied rights develop through case law and do not provide a comprehensive recognition of rights. These rights develop in an ad hoc manner Strengths Weaknesses Wednesday, 9 April 14
  26. 26. Nature of the rights protected Explicit rights are mainly civil and political rights There is an implied right to freedom of communication on public affairs and political matters Civil and political rights are limited; significant democratic and human rights are not mentioned in the Constitution Most rights are concerned with limitations on the action that the Commonwealth may take in relation to individuals Strengths Weaknesses Wednesday, 9 April 14
  27. 27. Enforcement Explicit rights and implied rights are fully enforceable by the High Court, which can invalidate legislation that infringes those rights Rights stated in the Constitution operate as limitations on government power. Some rights are expressed as specific prohibitions. The Commonwealth Parliament cannot make laws that conflict with an express or implied right Enforcement through the High Court is time-consuming and costly Explicit rights mainly relate to the action of Commonwealth Government The Constitution does not necessarily safeguard individuals from the actions of state parliaments Strengths Weaknesses Wednesday, 9 April 14
  28. 28. Statutory Interpretation High Court interprets the meaning and application of those rights expressed in the Constitution to current issues High Court interpretation has implied rights consistent with fundamental democratic principles Historically, the interpretation of explicit rights has been narrow The development of implied rights has been limited Strengths Weaknesses Wednesday, 9 April 14
  29. 29. United States - Protection of Rights See Case File Handout Wednesday, 9 April 14
  30. 30. Comparison AUS v. US Wednesday, 9 April 14

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