The Express Protection of Rights PDF

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The Express Protection of Rights: 1. Define the term ‘express rights’. In Australia there is 5 Express rights which are explicitly listed within the Australian Constitution. These express rights are afforded to all Australian Citizens, however, if an individual wants to contest this they must take it to the High Court of Australia. These are rights which will never change and cannot be altered by a Referendum. 2. Outline three express rights that exist under the Australian Constitution. The freedom of religion is one of the Express rights listed under the Australian constitution in section 116. This protects all Australians, by preventing the parliaments (both state and Federally) having power to impose a religious observance. The freedom from discrimination based on state, meaning that one individual isn’t significantly disadvantaged because they are from another state. The right to a jury trial for commonwealth indictable offences, meaning that if you have committed a Federal indictable offence, you must have a Jury at your trial. Synthesise and apply 3. For each of the following cases, state: • how the case highlights the role of express rights in providing a check and balance on the exercise of authority by the legislature • the outcome of the case, if available • the significance of the case. a. Brown v The Queen p.345 The case of Brown v The Queen highlighted the Express right: The right to trial by Jury for a Commonwealth indictable offence. Brown committed an indictable offence which fell under the Jurisdiction of the Commonwealth, therefore, this right is invoked and he must have a jury. Although Brown requested to be tried by the judge alone, the judge refused and brought up S.80. Subsequently Brown was tried by a jury. This holds significance as Brown Challenged this express right in the High court, as his interpretation of the express right was different from the outcome that High court interpretation of the right. This provided clarity around the express right. b. Betfair Pty Limited v Western Australia. p.342 This Case involved a company who was operating out of Tasmania Nationally, challenging a legislation that was passed by the WA parliament prohibiting the Company to operate in WA. This case was heard in the high Court, where the company challenged the legislation on the conflict between it and the express right that states: that there should be no discrimination between states. The high court ruled that the WA was being discriminatory towards Betfair and ruled the section of legislation invalid. This sets precedent as to how states have a duty to uphold express rights when passing legislation. 4. Look back at the legal case JT International SA v Commonwealth. P.344 a. Which section of the Australian Constitution is this case relevant to? Listed in the constitution under section 51, is the express right: The right for the just acquisition of property on just terms, for the commonwealth. This was challenged in the high court. b. What was the property that was the subject of the case? The Tobacco companies were claiming that their packaging of cigarettes where in essence their property, an by the commonwealth acquiring their packing by preventing certain aspects of their box advertising too exist in a legislation. This express right was not upheld.

c. Distinguish between taking property and acquiring property. Taking property involves the plain removal of property, whereas, acquisition is gaining ownership and taking full control of property.

In this case the commonwealth is not taking nor acquiring the property as they are still allowing limited branding and still allowing the sale of the goods.

d. Explain why no property was deemed to be ‘acquired’ in this case. The high court determined that no property was acquired because the commonwealth wasn’t infringing on any of the companies property rights. Furthermore, the government wasn’t gaining proprietary benefit. e. In what way did this case involve a check on the authority of the Commonwealth? This case demonstrated a company’s request for the high court to assert that the commonwealth haven’t disregarded the express rights, which cannot be altered. The high court interpreted this to ensure that the express right was upheld, they ultimately came to the conclusion that no express right were infringed upon through this legislation. f.

‘Express rights contained in the Constitution are so few, and limited in scope. They do not act as an effective check on parliament in ensuring our freedoms are protected.’ Discuss.

Express rights are specifically stated in our constitution, they are aimed to act as a check on parliament to ensure citizen’s rights are infringed upon. In theory, these are effective however there are some flaws. For someone to claim that their express rights have been infringed upon requires a high court case, which is not accessible to all, therefore, many people who may have had their express rights infringed upon may not be able nor aware that they can do something about it. Further to this, the check on parliament only happens if there is a complaint lodged within the high court’s judiciary system, meaning that there is the possibility that some legislation may infringe on ones right and never be brought up due to lack of knowledge and ability to take up their case. However, by having limited express rights allows for greater understanding and comprehension for the little rights that we are afforded....