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KK4 - EXPRESS RIGHTS
Terms in this set (14)
Express rights, describe
- is a right that is specifically listed in a document or constitution
- they are entrenched in the AUS constitution, meaning that they can only be removed from the constitution by amending it using the referendum procedure established by SECTION 128
5 rights are...
S116 Freedom of religion
S117 Freedom from discrimination on the basis of state
S51 The acquisition of property on 'just terms'
S80 Right to trial by jury for cmmth indictable offence
S92 Freedom of interstate trade and commerce
S116 - Commonwealth shall not legislate in respect of religion
- commonwealth shall not make any law for establishing national religion
- cannot impose a religious test as prerequisite for public office
- cannot impose religious observance ( e.g force people in court to take oath in the name of god)
- cannot make law that stops people from freely practicing religion
Limitation for s116 religion
- doesn't protect the people from state laws banning or creating a religion
- also possible for ccmth to indirectly limit the free exercise of religion if they have a legitimate primary reason for doing so e.g if practicing belief endangers public safety
S117 - The right not to be discriminated against on the basis of out-of-state residence
- prohibits laws in one state from placing a restriction or burden on a resident of another state, but only when that restriction or burden doesn't apply to the people from the home state as well
- cannot discriminate against someone because they do not live in that state
Case demonstrating s117 state right
- Street v Queensland Bar Association (1989)
- HC declared the rules that required a lawyer from NSW to give up practicing law in that state, if he wanted to practice law in QLD were invalid as breached of express right.
S51 - Right to receive 'just terms' when property is acquired by the cmmth
- Occasionally, Cmmth needs to take ownership over private or state property to perform functions such as building airports.
- S51 empowers the Commonwealth to do this by giving it the power of compulsory acquisition of property.
-The protection attached to this is that individual or state has the right to receive 'just terms' in compensation, meaning that any legislation acquiring the property of an individual, a business, or a state must include payment that is 'fair' in compensation
Limitation of S51 'just terms'
- what is 'fair' will vary, as 'just terms' not specified or clearly defined.
- If an individual wishes to challenge the terms, however, they must go to the time and expense of taking the matter to court
- doesn't protect an individual from having their property taken in the first place
S80 - Trial by jury for criminal indictable offences under commonwelath legislation
- gives defendant in criminal cases the right to have their trial heard by jury in any case where they have been charged with an indictable offence under Commonwealth law.
- The High Court has also held that the jury's verdict in these cases must be unanimous: no majority verdict is allowed in a federal trial
Limitations of s80 jury
- Most criminal offences are created by state laws, because 'crime' is a residual power.
- S80 only guarantees a jury trial for criminal offences under Commonwealth legislation
- Defendant cannot waive this right, cannot elect to have a trial without a jury.
S92 - Interstate trade and commerce
- S92 protects the general right to free trade between states.
- designed to ensure businesses can trade with consumers and other businesses in other states without restriction.
- Prohibits taxing or preventing interstate trade
Gives the commth parliament the power to provide the HC with jurisdiction to hear disputes arising under the constitution or involving it's interpretation
Strengths of express rights
- they limit what parliament can make laws on and this protects public against parliament being able to make laws on any issue it wants
- cannot by removed by cmmth parliament, requires referendum to be noted on by people of aus. check on law making of parliament
- any person who believes law infringes on their ER can take their case to HC and able to declare the law invalid
Weaknesses of express rights
- can only be changed by referendum, which is diffucult process, which makes a limited ability to increase express rights
- Cmmth parliament can pass a law to change or effect right, however must be challenged in the HC to be declared invalid
- there are few in AUS compared to other countries
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