13.4 Rights Protection: Australian Constitution

express rights

rights that are stated in the constitution, and are entrenched, meaning they can only change by referendum

referendum

the method used for changing the wording of the Australian Constitution

requires a proposal to be approved by the Australian people in a public vote in a double majority

double majority

a voting system that requires a national majority of all voters in Australia and a majority of electors in majority of states to vote in favour of a proposal

required for a change in wording of the constitution at a referendum

implied rights 

rights that are not expressly stated in the constitution but are considered to exist through interpretation by the High Court

freedom of political communication 

the right of Australian people to freely discuss and debate political issues, subject to certain restrictions

senate

upper house of commonwealth parliament

house of representatives

the lower house of commonwealth parliament

representative government

a political system in which the people elect members of parliament to represent them in government

how does the constitution protect human rights 

• express rights 

• implied rights 

number of express rights in the constitution

5

express rights in the constitution

• right to free interstate trade and commerce

• right not to be discriminated against based on state of residence

• right to recieve ‘just terms’ when property is acquired by the Commonwealth

• right to trial by jury for Commonwealth indictable offences

• right to freedom of religion

Commonwealth indictable offences 

serious crime under federal law 

e.g. terroism, serious drug importation, human trafficking

section 80 of the constituion

provides Australians with the right to trial by jury when cahrged with a commonwealth indictable offences

limitation of constitutional protection

only relates to commonwealth indictable offences- most indictable offences are crimes under state/ territory law

courts relationship with implied rights

high court justices can decide that a word or phrase within the constitution implies a right exists even though it is not explicity stated

High Court ruling of section 7 and 24 of the constituion

expressly requires the house of Commonwealth Parliament to be ‘directly chosen by the people’

for citizens to make an informed decision to elect MPs they must be able to obtain information about political views and opinions

enforcement of constitutional rights

all rights protected by the constitution can be fully enforced by the High Court

challenging a law in High Court

if a party believes the commonwealth parliament has passed a legislation that infringes a constitutionally protected right

once the high court declared the commonwealth’s law is unconstituional and invalid 

parliament’s options are to:

• remove the unconstitutional provisions from the legislation 

• try to change the constitution by holding a referendum