Legal Studies Unit 3: SAC 2.2 - Protection of Rights

Describe the structural protection of the principle of responsible government

- Are the principles that ensure the responsibility and accountability of government to the parliament, and the protection of the rights of citizens to be governed. - Requires that members of the executive government (i.e. the prime minister and ministers) be drawn from and answerable to the parliament. - Government must have the confidence of the parliament, or it should resign. - This protects the rights of people from being governed by a political party that no longer has the support of parliament, thereby reducing the ability of a government to abuse power.

Strengths of High Court Interpretation

- HCI has had the most success in changing the law-making powers and updating them for modern use. - The High Court can act as a check against any abuse of power by the states or the Commonwealth parliament - High Court judges are experts in constitutional law and are therefore very suited to interpreting the words of the Constitution and applying the Constitution to the case before the court

Bill of Rights

- Many countries set out the democratic and human rights of individuals in a Bill of Rights. These rights are entrenched or established in a nation's Constitution, and cannot be changed by parliament or any other legislative body. - Can only be changed through the processes that are allowed for amending the Constitution within that country. - Entrenched rights set limits on the power of the government in relation to its citizens. Due to this it is the most stable form of human rights protection due to its difficulty to amend or remove. However, it is also harder to introduce it. - For instance, a Bill of Rights was entrenched in the Constitution of the United States in 1791.The American Bill has ten amendments containing rights, but many are quite specific.

Statutory Bill of Rights

- Rights are found within an ordinary statute (i.e Act of Parliament) so are therefore a less permanent means of protecting human rights. - This means any rights that have been legislated in this way may be amended or repealed in the same manner as any other law. Amendments can be made without public support of approval. - As a result of this, Statutory Bill of Rights are easier to enact, amend and repeal as to do so they only need the support of the majority of both houses of parliament.

Weaknesses of High Court Interpretation

- The high court cannot actually change the wording of the Constitution, only a referendum can do this. Its role is limited to interpretation. - The High Court has to wait for a relevant case to be brought before it. This can be an expensive and time-consuming prospect for those involved. - The composition of the High Court can affect the interpretation given. For example, conservation judges may be reluctant to change law making powers, whereas progressive judges are more inclined to do so.

Describe the structural protection of the Separation of Powers

- The separation of powers demands that each of these three types of power is held by a separate body so that no one body has absolute control over the functions of the legal system. - This also helps protect individual liberty by providing a checks and balances on the power of Commonwealth to ensure that no one body holds the power to make (legislative), enforce (executive) and adjudicate a breach (judicial) of the law The separation of power protects people from the parliament acting like a court and punishing people without trial. [1 mark] The separation of power protects the people from the executive government preventing our elected representatives in parliament from making law. [1 mark] .

Describe the structural protection of the principle of representative government

- This is designed to ensure that members of parliament are accountable to the electorate, and should represent the values of the voters, the foundation of democracy. - While the Constitution does not directly express the right to vote, a number of sections of the Constitution provide for the people to directly choose their representatives in Commonwealth Parliament through elections, and uphold the principle of representative government. - Section 7 provides that senators for each state be directly chosen by the people of that state. - Section 24 states that the House of Representatives be composed of members directly chosen by the people. - Section 28 requires that the House of Reps be elected every three years The system of representative government prevents the parliament from cancelling regular elections. [1 mark] The system of representative government prevents the parliament from taking the vote away from large sections of the population without just cause

Describe the facts/issue of the Brislan Case

A woman was charged with having a wireless radio without a license under the Wireless Telegraphy Act 1995. She challenged the validity of the law surrounding her ability to be charged in the High Court, stating that wireless radio did not align with s51 of the Constitution, thus did not give the Commonwealth Parliament power to charge her.

Strengths of the Constitutional Protection of Rights for Australians

1. Entrenched rights: Constitution provides absolute protection for express rights that are entrenched within the Constitution. Rights are really prohibitions on the law-making powers of the Commonwealth Parliament, which help protect the liberty of the governed citizens. 2.Process for change: If entrenched, rights cannot easily be repealed or overridden. The change or removal of entrenched rights requires a successful referendum, which would require a double majority. This is often difficult to obtain as only 8 out of 44 referendums have been successful. 4. Protection of the High Court: The High Court is also of benefit to the constitutional protection of rights as it was established to be the guardian of the Constitution and serves an important role in enforcing protected constitutional rights in order to ensure that rights are upheld. The High Court has the power to apply the rights stated in the Constitution. Anyone who feels their rights have been infringed can go to the High court who can then declare legislation to be invalid if it is inconsistent with the Constitution. It is then up to parliament to change it or have a referendum. 5. High Court Interpretation: The High Court has the power to interpret the rights set out in the Constitution. Interpretations have also allowed the High Court to recognise rights implied by the Constitution. 6.New rights can be added to the Constitution through a successful referendum 7.Prevention of abuse of power: A combination of protection mechanisms, including structural protection, express rights and implied rights, prevents the abuse of power by the Commonwealth Parliament.

Weaknesses of the Constitutional Protection of Rights for Australians

1. Limited number of rights: The Constitution protects only a limited number of rights, 5 express rights and 1 implied right. It does not contain a bill of rights and the rights within it are spread throughout the Constitution, This means that the legal system must rely heavily on legislation and the common law to protect rights. However this ensures that these rights can be continually amended and added to to keep up with changing values 2. Referendum process: Difficult referendum process has limited the entrenchment of further rights. People must rely on statute law and common law in protecting rights. 3. Has to wait for a case to come before it: The High Court does not give advisory opinions on any proposals to reinterpret the protection of rights. It will only rule on those matters or make a declaration of invalidity when a dispute is before the Court and a judgement is required. This can be a lengthy and costly procedure for the parties involved 5. Narrow Interpretation: The High Court tends to interpret the express rights narrowly and the development of implied rights has been limited. 5. There is no dialogue between parliament and the High Court at the drafting stage to check whether bills are likely to infringe upon protected rights due to the Sep of Powers, this can only be assessed once the act comes into effect, and a person whose rights are infringed can then pursue their claim in the High Court. 6. Restricted limitations: Most rights provisions apply only to the Commonwealth Parliament, and do not limit the actions of State Parliaments.

Structures that operate as a form of protection of rights include?

1. Representative Government 2. Responsible Government 3. Separation of Powers 4. High Court

What is an entrenched right?

An entrenched right is a right that is part of a constitution. (Express Right) - Rights entrenched in the Commonwealth Constitution can only be changed by referendum. - They are also fully enforceable by the High Court and are unable to be overruled by parliament. As a result, entrenched rights set limits on the power of the government in relation to its citizens.

Differences between Australia and USA Protection of Rights

Bill of Rights: The USA's express rights are contained in a bill of rights entrenched in the US Constitution. It protects an extensive number of rights, including freedom of religion and speech, the right to trial by jury and the right to bear arms. In Australia, there is no bill of rights at a Commonwealth level. Express Rights: The US also has a far more extensive list of express rights than the Australian Constitution. We only have 5, many are contained within statute and common law. Referendum process: A more complex and lengthy procedure regarding the referendum occurs in the USA than Australia. In the USA two thirds majority of both houses of Congress, plus 3⁄4 of all states. Whereas in Australia it's only a double majority (majority of states & majority of people) Overlapping of the Separation of Powers: The separation of powers is strictly adhered to in the US, whereas there is some overlapping of the legislative and executive functions in Australia.

Describe the Decision/Impact of the Roach v Electoral Commissioner (2007)

Decision The High Court, in a 4:2 majority decision eventually held that the 2006 act was inconsistent with the Constitution in regard to its principle of representative government. Because of the structures established in S.7 and S.24 of the Constitution, the Court held that the 2006 Act was unconstitutional and therefore invalid, but the 2004 act remained valid because the right to vote could be removed from those convicted of serious criminal offences (longer than three years). Impact The Commonwealth retained the power to determine who can vote, but to ensure a 'representative government' as required by the Constitution, a 'substantial majority' of the population must be able to vote. This principle acts as a limit on the powers and sovereignty of the Commonwealth Parliament, which cannot remove an individual's right to vote without a substantial reason.

Similarities Between Australia and USA Protection of Rights

Entrenched express rights: Both Australia and the USA's express rights are entrenched and can only be changed by holding a referendum to change the Constitution. Implied Rights: Both have one implied right - right to privacy in the US, and the right to freedom of political communication in Australia. Both rights are protected by the high court and a referendum process. Structural Protections: In regards to the structural protection of rights, both countries have established the principle of separation of powers and representative government to protect human rights through the misuse of power. Work of the Courts: A court (High Court in Aus, Federal Court in USA) 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.

Describe the issue of the Roach v Electoral Commissioner (2007)

Facts Vicki-Lee Roach was a woman serving 6 years in jail. Prior to 2006, the Commonwealth Electoral Act stated that anyone serving a sentence of imprisonment of three years or more was ineligible to vote. In 2006 the Commonwealth government amended this act, prohibiting all convicted and sentenced prisoners from voting in elections. Legal Issue Vicki-Lee Roach was unable to participate in the 2007 election. Roach challenged the validity of this law in the High Court, arguing that it breached a constitutionally protected right to vote.

Define Implied Rights

Implied rights are those not explicitly stated or written in the Constitution, but which have been found by the High Court through interpretation to have been suggested and intended by the authors of the Constitution for these rights to be protected by the Constitution. The High Court has found one implied right - freedom of political communication.

Explain s116 - freedom of religion

Prohibits the Commonwealth from making any law that may establish a national religion, impose any religious observances, ban a religion, or require a religious test compulsory for gaining a Commonwealth office job. S116 protects non-believers indirectly by providing for what the High Court called the 'right of a man to have no religion'. Limitations Prohibits only Commonwealth laws from restricting religious freedom in these ways. It does not apply to state laws. It is possible for the Commonwealth to indirectly limit the free exercise of religion if they have a legitimate reason for doing so: for example if practising a religious belief endangers public safety.

Define structural protection

Refers to the systems, structures or mechanisms found in the Constitution that operate to indirectly protect human rights by preventing the misuse or abuse of power.

Describe the Implied Right of 'Freedom of Political Communication'

Rights are implied about freedom of speech and communication on matters concerning politics and government. The first High Court decision to read into the Constitution and recognise the implied right was the: 'Political Advertising Case' or 'Australian Capital Television v Commonwealth (1992)' *Facts* The case concerned new Commonwealth legislation, the Political Broadcasts and Political Disclosures Act, which sought to substantially control political advertising on radio and television in the 6 months of campaigning before a federal election. The act allocate fixed advertising time to existing members of parliament only, meaning parties that did not have an existing seat were restricted in their ability to campaign. A broadcaster - Australian Capital Television challenged the validity of this act in the High Court. *Legal Issue* No section in the Constitution grants a right to unrestricted communication, however, sections 7 and 24 of the Constitution do state that parliament must be elected directly by the people. The High Court was required to interpret to what extent did this system of representative democratic elections require a level of free communication. *Decision* In 1992, the majority of the High Court found that the Constitution expressly establishes a democratic system. It creates a representative government by requiring that members of parliament be 'directly chosen by the people' in s7 and s24. In order to make the choice representative, the people need free political communication to cast an informed vote. The Court also found it also implied the people themselves need to be able to discuss information and opinions about the government and other political matters to inform themselves and others.

List the sections relevant to the 5 Express Rights

S.51(xxxi) - the acquisition of property on just terms S.80 - right to trial by jury S.92 - trade between states must be free S.116 - freedom of religion S.117 - freedom from interstate discrimination

S.117 - freedom from interstate discrimination

S117 states that it is unlawful for state and Commonwealth governments to discriminate against someone on the basis of that person's state residence. Limitations Limitations of this right are its fairly narrow scope and ambiguous application. In terms of discrimination, being discriminated against on the basis of one's residence tends not to be as significant as being discriminated against on the basis of gender or religion.

Explain s.80 - right to a trial by jury

Section 80 of the Constitution states that 'The trial on indictment of any offence against any law of the Commonwealth shall be by jury..' This section applies only to Commonwealth offences; further, jury trials are mandated only for trial on indictment, which means only those offences that have been stated as being indictable offences. Limitations However this section provides only a limited right to trial by jury, as most criminal offences are under the jurisdiction of states as criminal law is a residual power. These offences are not bound by this section meaning s80 only applies to Commonwealth offences. Parliament can define which offences are 'indictable' offences, the government can avoid s80 and thus avoid a trial by jury for a particular offence, by legislating for that offence to be a summary offence.

Explain s92 - trade between states must be free

Section 92 of the Constitution states that trade and commerce among the States must be absolutely free. This freedom relates not so much to the human rights of individuals but is instead designed to ensure that businesses can trade with customers and other businesses in other states without restrictions. Limitations Today this right is understood as more of a general right to free trade or movement of goods and services within Australia therefore it has a limited application as an individual right.

Describe the facts/issue of the Franklin Dams Case

Tasmanian Parliament wished to use its residual power over the Franklin River to dam the site to build a hydroelectric power plant to generate hydroelectricity and employment for the state. Commonwealth Parliament contested this under the World Heritage Properties Conservation Act 1983 that it has signed, listing the Franklin Dam as having protection due to its national significance and inclusion on the World Heritage List.

Explain s51(xxxi) - the acquisition of property on just terms

The Commonwealth is only able to take or acquire property for a purpose or area in which to has the power to make laws, for example national parks and roads. Further, it is required to provide compensation that is reasonable and fair in the circumstances. Limitations The right doesn't protect a person from having their property taken, it only states that it must be on 'just terms' which in itself is another limitation of the right. 'Just terms' does not simply mean market value on a free market, in terms of how much a owner could receive, it does require a fair price to be given. If an individual wishes to challenge the price they would be forced to pay the costs of contesting it in court. Does not apply to acquisitions by states. There is no constitutional requirement for a state government to pay just terms for an acquired property.

Describe the impact of the High Court's Interpretation in the Brislan v R Case in relation to the division of power between the Commonwealth and State Parliaments?

The High Court interpreted s51 of the Constitution which stipulates that Commonwealth could legislate on matters involving 'postal, telegraphic, and other like services'. The High Court interpreted 'other like services' to include wireless radio. The High Court decision extended the meaning of s51, thereby greatly expanding the power of the Commonwealth Parliament to make laws in relation to new technologies. The interpretation allowed Cth Parliament to make laws on new technology which were not envisioned and didn't exist at the time of federation. This has had a significant impact on the division of powers, as since this case occurred, no one else has challenged the high court in relation to this phrase in s.51 as they assume that any modern form of communications will fall under 'other like services' and hence the challenge will be unsuccessful.

Describe the impact of the High Court's Interpretation in the Franklin Dam Case in relation to the division of power between the Commonwealth and State Parliaments?

The High Court interpreted the meaning of the phrase 'external affairs' within s51 (xixx) of the Constitution. It decided that external affairs power gave the Commonwealth Parliament the power to make laws in areas of residual powers to uphold international treaties. The decision expanded the meaning of 'external affairs' to ensure international treaties are upheld. This outcome greatly expanded the law-making powers of the Commonwealth Parliament at the expense of the states, as the Commonwealth was able to legislate on an area of law that was previously a residual power. The Commonwealth now have the authority when legislating to enact obligations under an international treaty of which Australia is a signatory, to create broad-ranging legislation in residual areas of power as well as exclusive and concurrent areas of power. This clearly erodes the power of the states as the expanded external affairs power has made invalid many pieces of state legislation that were inconsistent with Commonwealth law, despite the states traditionally being the only Parliament able to make law in residual areas.

What is the role of the High Court?

The High Court of Australia was established under Section 76 of the Constitution as the arbiter of disputes arising under the Constitution involving law-making power and jurisdiction. - The High Court of Australia is the only court with the power to hear matters of interpretation that arise in relation to the Australian Constitution. - The High Court does not have the power to change the wording of the Constitution, but rather add meaning to it through the interpretation of its wording. - In doing so, the High Court has had a significant impact on altering the division of powers between the State and Commonwealth parliaments.

Describe the structural protection of the High Court

The guardian of the Constitution in Australia, ensuring that state and Commonwealth governments abided by its terms.

Define Express Rights

The rights explicitly stated in the Constitution are referred to as express rights. These rights are protected as they are entrenched in our Constitution, meaning that they can only be changed or removed through amending the Constitution through a successful referendum. Express rights are fully enforceable by the High Court and are unable to be overruled by parliament.

What is the overall consensus of the Constitutional Protection of Rights of Australians?

While there are only a small number of express and implied rights protected in the Constitution, the strong structural protections provide effective protections of the rights of Australians. *Our constitution concentrates on the actual structure of parliament and the division of power* between the Commonwealth and state parliaments rather than expressly stating all rights that should be protected *The political structure created by the Constitution protects our rights by:* Establishing a federal system of government Bicameral legislature reviews of legislation Separation of powers Representative and responsible government A democratic way of amending the Constitution