CHAPTER FOURTHE PROTECTION OF RIGHTSPART TWO2013 GLENVALE SCHOOL

VCE Legal StudiesUNIT 3

The express rights in the Constitution

5 express rights contained in the Constitution that can only be removed or altered by a referendum.

S80 TRIAL BY A JURY FOR INDICTABLE COMMONWEALTH OFFENCES

The express rights in the Constitution

S116 Freedom of Religion

S92 Free interstate trade and commerce

S117 No discrimination on the basis of State

S51(xxxi) The right to receive ‘just terms’ when property is acquired by the Commonwealth.

S80 Right to trial by jury

The express rights in the Constitution

All fall under the safety of the constitutional umbrella.

Rights that are created by common law and legislation can be altered or removed by the Commonwealth.

Express rights in the Constitution are entrenched in it .

You need to focus on 2 of these and know them for exams and the SAC

S116 Freedom of Religion

What does s116 do?It is an express right that provides the Commonwealth cannot pass a law that:1. Establishes a State religion2. Impose any religious observance3. Prohibits the free exercise of any religion

S116 Freedom of Religion

A good right to choose.What is a case that established this express right and its validity?

Ex Rel Black v Commonwealth (1981)

Facts: Plaintiff claimed government legislation that provided funding to non-government schools via grants was invalid. The funding was directed to religious schools and therefore contravened s116

Ex Rel Black v Commonwealth (1981)

Decision: Found in favour of the Commonwealth

Reason: High court reinforced the right to freedom of religion. Full bench of the High Court ruled that legislation by the Commonwealth to establish grants for religious schools was valid.The grants did not differentiate against different schools based on religion.

S116 Freedom of Religion

How do I use the Ex Rel Black case in an answer?

How is the freedom to religion protected in the express rights of the Commonwealth Constitution?

This case suggests that the High Court has established that all religious schools have the right to apply for government grants as do the government schools.

S51(xxxi) Acquisition of property on just terms

The Commonwealth must provide ‘just terms’ when it compulsorily acquires property.

An independent valuer will decide on just terms but this may not suit the person losing the property.

The Commonwealth needs to acquire property in any area where it can make laws eg national parks, airports etc

THE CASE TO USE>>>>>>>>>>>>>>>>

Telstra Corporation Limited v The Commonwealth (2008)

Facts: Telstra was not satisfied on the compensation paid by the Commonwealth when it acquired cables for local loops (millions of dollars).

The Commonwealth acquired these cables as part of a national acquisition. This acquisition came through the findings of the Australian Competition and Consumer Commision which was aimed at letting other service providers use this cable.

Telstra Corporation Limited v The Commonwealth (2008)

Decision: Found in favour of the Commonwealth.

Reason: The government has the right to acquire these assets. The end result is fair competition of telephone companies. ‘just terms’ had not been violated.

Telstra Corporation Limited v The Commonwealth (2008)

Telstra Corporation Ltd - vs - Australia

EVEN THOUGH COMMUNICATIONS HAVE COME A LONG WAY SINCE 1901, THE TERM ‘JUST TERMS’ STILL MEANS A BETTER OUTCOME FOR ALL AUSTRALIANS

IMPLIED RIGHTS OF THE CONSTITUTION

Not expressed in the Constitution.But: have been read into it or implied in the Constitution by its structure and text.

How do I explain this in a SAC or the dreaded final year exam????

Answer- choose a right that has been confirmed as an implied right through a case!!!

IMPLIED RIGHTS OF THE CONSTITUTION

The right to freedom of political communication.

Australian Capital Television v The Commonwealth.Reason for Decision: Legislation that bans ploitical advertising is invalid because it takes away an implied constitutional right to freedom of political communication.

Rights Protected by Acts of Parliament or Common Law

Legislation for Rights (discrimination etc)Common Law – precedent of rights rulings.Right to silenceRight not to be held and questioned beyond

reasonable time

Note how new legislation may over rule common law eg terrorist laws.

Strengths of the Constitution in protecting rights

Those that are express from the original document.

Freedom of political speech (Implied)The idea of Responsible Govt.When Parliament legislates outside its powers

(Ultra Vires) it is inoperable eg Malaysia solution Ms Gillard

Weakness of the Constitution in protecting rights

Hard to change the rights unless a referendum is used.

It protects few rights but look at the Responsible Govt argument.

Minority groups may not be heard.

USA – Protection of Rights

Bill of Rights from their ‘union’ of the North and the South.

Has Individual, Civil and Political Rights.

Protects individuals from State and Federal rights abuse.

Page 172 sets them out.5th amendment – right not to answer

questions.

3 Pillars of Success

Develop your case list.

Summarise your notes.

Answer past exam questions on the Constitution and the protection of rights.