Presentation on theme: "From the study design: Key Knowledge: the means by which the Commonwealth Constitution protects rights, including structural protection, express rights,"— Presentation transcript:
From the study design: Key Knowledge: the means by which the Commonwealth Constitution protects rights, including structural protection, express rights, and implied rights the significance of one High Court case relating to the constitutional protection of rights in Australia Key skills: evaluate the means by which rights of Australians are protected by the Commonwealth Constitution, and the extent of this protection
What is a Right? Broadly, a right is something to which each individual is entitled. We may have moral rights, legal rights, human rights and democratic rights – but distinctions between them may not be very clear. The dictionary definition of a right is: ‘…an entitlement that is enforceable by the law…’
Basic Human Rights In 1948, the Universal Declaration of Human Rights was drawn up by the United Nations. It consisted of some 30 articles and articulated a range of rights including the right to life, liberty and security right to own property right to a fair and public hearing right not to be enslaved right to participate in political processes right to freedom of opinion and expression and even the right to rest and leisure
In 1966, Australia became a signatory to two treaties: The International Covenant on Civil and Political Rights and The International Covenant on Economic, Social and Cultural Rights
Do we have a Bill of Rights in Australia? Unlike the USA, Canada or South Africa, Australia is the only western nation that does NOT have a national bill of rights.
Canada’s Charter of Rights and Freedoms
USA’s Bill of Rights
If we don’t have a Bill of Rights, in Australia, then how are our rights protected?
In Australia, the main ways in which our human rights are protected is through: 1. Legislation eg: Equal Opportunity Act 1995(Vic), Human Rights and Equal opportunity Commission Act 1986 (Cth) 2. Common Law Right to silence 3. Being a signatory to an international treaty UNESCO (the rights set out in these international treaties do not automatically become law, parliament needs to pass legislation). 4. The constitution-s 128 In order to change the constitution we need to have a referendum, which we know is hard to achieve.
Look at the study design again: Key Knowledge: the means by which the Commonwealth Constitution protects rights, including structural protection, express rights, and implied rights
We need to focus our study on how the Commonwealth Constitution protects our rights.
There are three ways by which the Commonwealth Constitution protects rights: 1. Structural protection (the structure of our political system) 2. Express Rights (expressly stated in the Constitution) 3. Implied Rights (inferred in the Constitution)
1. Structural Protection There are structures and systems created by the Constitution and these indirectly protect our rights: the separation of powers representative government responsible government
Structural protection of rights Structural protection is the systems or mechanisms in the Commonwealth Constitution that indirectly protect human rights by preventing the abuse of power, such as the separation of powers or representative government. Structural protection reflects the fact that there are checks and balances built into the Constitution, which prevent power being abused and therefore protects human rights. An example of a structural protection is the recognition of the right to freedom of political communication on political matters in the case of Australian Capital Television Pty Ltd v The Commonwealth 1992 also known as the ‘Political Advertising Case’.
Express rights: are rights which are explicitly stated in the Constitution. These rights are entrenched rights; meaning they are written into the Constitution and consequently can only be removed or amended by a successful referendum. The Commonwealth Constitution protects FIVE rights expressly written into the Commonwealth Constitution. The constitution limits the Commonwealth parliament’s powers in these areas. 2. Express Rights
Read p Express or explicit rights Only five express rights are incorporated into our Commonwealth Constitution. These take the form of restrictions, placed on our parliaments: s. 51(xxxi): the Commonwealth can only acquire property on just terms s. 80: protects a defendant’s right to trial by jury, if charged with a Commonwealth indictable offence s. 92: protects freedom of trade and commerce, thereby prohibiting the Commonwealth from restricting our movements between states, or the imposition of customs duties or taxes to restrict state trade s. 116: protects a person’s right to freedom of religion, to freely exercise or establish a religion, or to have no religion. s. 117: citizens cannot be discriminated against because they are a resident of a particular state.
The Five Entrenched Rights 1.Freedom of Religion S. 116 This Section prohibits the Commonwealth from establishing a state religion or imposing religious observances. Religious belief cannot be a requirement for employment by the Commonwealth. The right to have ‘no religion’ is also protected This applies only to the Commonwealth. S 116 does not apply to the states.
2. Free interstate trade and commerce (freedom of movement) S. 92 This section upholds an economic right for freedom of interstate trade. Additionally it has been interpreted to ensure and protect the rights of citizens to move freely or travel between states.
3. Right not to be discriminated against on the basis of the state where you reside. S.117 This section gives protection to Australian citizens from being discriminated against on the basis of the state in which they live. This restriction applies to both state and Commonwealth parliaments.
4. The acquisition of property on just term. S. 51(xxxi) This right recognises the basic right of all individuals to private ownership of property while at the same time recognising that in some circumstances the government has the right to acquire property from any state or individual on ‘just terms’. With individuals, it usually gives compensation (money).
5. Trial on indictment for any offence against a law of the Commonwealth shall be by jury. S. 80 The right to a trial by jury for all Commonwealth indictable (serious) offences eg trafficking, immigration violation, counterfeiting. The High Court has also determined that in these cases the jury’s verdict must be unanimous. However, most indictable offences are crimes under state law, and s.80 only applies to Commonwealth offences the High Court has ruled that ‘indictable’ means ‘crimes tried on indictment’. Hence, the government can avoid s.80, and thus avoid a jury trial for a particular offence, by legislating for the offence to be a summary offence.
The extent to which these entrenched rights are protected. These express rights are protected under Section 128 of the Commonwealth Constitution, which stipulates the process for changing the words of the constitution. Since the rights are entrenched, they can ONLY be changed or removed with a successful referendum. History tells us that it is very difficult to have a successful referendum.
3. Implied Rights: - are those rights that are not explicitly stated or written in the Constitution, but due to the interpretation of the Constitution by the High Court, is said to exist as an implication of the words of the Constitution. The right is not stated but intended by the writers of the Constitution.
Since the Constitution under Sections 7 and 24 requires that: 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 … The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth … In order for people to make informed decisions about the people they elect then freedom of political communication is essential.
The only implied right recognised by the High Court is: the right to freedom of speech and communication on political matters.
Key Knowledge: the significance of one High Court case relating to the constitutional protection of rights in Australia 1. Australian Capital Television v Commonwealth (1992) and further developed in 2. Lange v Australian Broadcasting Corporation (1997)
Case study 1: Australian Capital Television Pty Ltd v. Commonwealth (1992) ‘Political Advertising Case’ Facts of the Case: A television broadcaster challenged the validity of changes to the Broadcasting Act The Political Broadcasts and Disclosure Act 1991 amended the Broadcasting Act. These amendments imposed bans on radio and television advertising for federal, state and local government elections. The High Court held that the law was invalid because there was an implied right of freedom of communication on political matters. The decision: The High Court stated that: the Constitution establishes a system (or structure) of representative government. In a representative government, members of parliament are directly elected by the voters, thus a free discussion or debate about public affairs and political matters is essential for voters to make an informed choice at election time. Since the Constitution provides for an elected and representative government, then it’s implied that there needs to be open debate about political matters so that the vote is informed and a representative government is elected.
How effective is the Constitution in protecting rights? The Constitution provides absolute protection of those rights that are entrenched in the Constitution. However, these rights are limited in number and are mainly prohibitions on the law-making powers of the Commonwealth Parliament. Many basic rights are not stated in the Constitution. There are clear advantages to having rights entrenched in the Constitution. For instance, they cannot readily be repealed or overridden. A change in the entrenched rights requires a referendum. Unfortunately, however, this process rarely results in a change and has limited the entrenchment of further rights. The High Court has the power to interpret the rights set out in the Constitution. Interpretations have also recognised that rights may be implied by the Constitution. However, this has not provided for a comprehensive statement of rights. The High Court tends to interpret the express rights narrowly and the development of implied rights has been limited to one thus far. The High Court has the power to apply the rights stated in the Constitution. The High Court can declare invalid legislation that is inconsistent with the Constitution.