3RD SAC coming up on Tuesday! need help with a few points :)

[12345luke]

Just a few things I want other opinions on so I can get a good idea on how to answer questions.

DEFINITIONS

- Structural Protections
- Express Rights (What is an express right in general / what are our 5 express rights)
- Implied Rights: What are implied rights / which one is acknowledged / which cases led to this acknowledgement
- Common law and Legislative approaches to protections
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- Identify the significance of the United Nations declaration of human rights and Victoria's Charter of Human Rights (how are they different, why is it significant)
- Strengths and weaknesses of our Constitutional human rights protections (does our constitution protect rights adequately enough)
- America's Human Rights protections: What is a bill of rights?
- Evaluate if Australia is adequately meeting the needs of its citizens in the eyes of the world.
- Comparison between Australia and America: two similarities and two differences with human rights, preamble comparison.

Any help with any of those above would be fantastic! THANKS GUYS!

[EmmaCow]

STRUCTURAL PROTECTION is the systems or mechanisms in the Commonwealth constitution that indirectly protect human rights by preventing the abuse of power. This includes the separation of powers and 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 structural protection is the recognition of the limited right to vote in the case of Roach vs. Electoral Commissioner
o   The constitution does NOT have a Bill of Rights
o   The constitution includes structures to prevent abuse of power
o   Purpose or intention of the writers of the Constitution?
the writers of the constitution shared a belief that the best way to protect individual rights was to ensure a good system of government and preventing the commonwealth from gaining too much power which would consequently interfere with the powers of the state. They were not preoccupied with human rights and gave little attention to it.
o   Structures include:
   Bicameral parliament
   Separation of powers
   Representative government
   Responsible government
   High Court
o   Roach vs. Electoral Commissioner
relates to S.7 and 24 which state that the parliament must be chosen ‘directly by the people’ and S.8 and 30 which give the Federal parliament the right to legislate to decide who may vote in an election. Roach argued that prisoners should be allowed the right to vote. The HC ruled that there was a Constitutional protection of the right to vote under the structural protection of representative government- therefore prisoners serving a term of 3 years or less are given the right to vote. This is a limitation of Commonwealth’s law making power because they cannot pass laws that unreasonably take away the right to vote

EXPRESS RIGHTS
   EXPRESS RIGHTS are entrenched in the Constitution. This means they can only be changed with a referendum. They are explicitly written in the Constitution and we have 5.
1.   Section 51(xxxi): the Commonwealth can acquire property on ‘just terms’. This would mean for federal purposes including the power to make laws. ‘Just terms’ refer to fair and reasonable compensation
2.   Section 80: right to a jury for Commonwealth indictable offences. Indictable offences are the most serious offences
3.   Section 116: freedom of religion, right to exercise religious belief or NOT exercise a religion. Right to establish a religion. The Commonwealth cannot make a law that requires a person to follow or observe a religion belief in order to be employed by the Commonwealth. This law does not apply to the states, only to the Commonwealth.
4.   Section 117: citizens cannot be discriminated against on the basis of where they choose to live
5.   Section 92: freedom of trade, commerce and movement between states. Commonwealth cannot impose taxes or custom duties to restrict state trade.

IMPLIED RIGHTS:
3.   IMPLIED RIGHTS are rights that were intended by the drafters of the Constitution but not expressly stated in the document. It is not an entrenched or express right. We have 1
1.   Right to freedom of political communication
Political Advertising Case (1991) challenged Federal legislation ‘The Political Broadcasts and Disclosure Act 1991’. This law imposed a ban on political advertising though media. The High Court declared this law was invalid.
- the constitution sets up a system of representative government
- in representative government MP’s are elected by the vote of the public
- must have free discussion or debate about public affairs
- therefore implies the need for free debate so that the vote is informed and the representative government is effective


Theres the stuff on your first 3 questions! I have the rest but just running out.. i'll post it later today!
Goodluck! i have a SAC on wednesday on the role of courts

[Iniquity]

We're doing Canada for the comparision, so I won't be able to help with questions about any other countries. Sorry!

Structural Protections
These are mechanisms created by the Constitution that indirectly protect the rights of individuals. Structural protections include representative government (which ensures that the government does not abuse rights) and the separation of powers (which allows courts to enforce the law fairly and without political bias).

Express Rights
Express rights are explicitly stated in the Constitution. They are entrenched, meaning that they cannot be removed without a referendum (section 128). They are also fully enforceable, meaning that the High Court can declare any laws that breach express rights as invalid. Our 5 express rights are: free interstate trade and commerce (section 92), freedom to practice religion (section 116¹), right to trial by jury for Commonwealth indictable offences (section 80), not to be discriminated against on the basis of which state you live in (section 117), and the right to receive "just terms" when property is acquired by the Commonwealth (section 51 xxxi).

Implied Right²
Implied rights are not explicitly stated in the Constitution, but arise due to the High Court's interpretation of some sections of the Constitution, and are fully enforceable (any laws that breach these rights can be declared invalid by the High Court). The High Court will imply rights if they believe the writers of the Constitution intended for these rights to exist. One such interpretation in the Australian Capital Television case in 1991 led to the freedom of communication on political matters (which is our only implied right). The Commonwealth passed the Political Broadcasts and Political Disclosures Act (1991) to ban some political advertising on radio and television during election campaigns. Once this was challenged, the High Court decided that for the government to be truly representative, they must be able to communicate freely with the public, and the public must be able to openly discuss political matters, be informed, and share their opinions. This was due to the representative democracy set up by the Constitution as a whole, and sections 7 and 24 stating that both houses of parliament must be "directly chosen by the people".

In 1997, defamatory comments were made about Lange (a former prime minister of New Zealand) on Four Corners. The High Court's interpretation in this case led to the scope of the implied right being narrowed; after this, it only allowed for the freedom of communication on political matters relevant to the Australian system.

Common law and Legislative approaches to protections

Wait...is this SAC strictly to do with the last few dot-points from AOS2? If so, then you shouldn't need to know anything about those yet. Common law is law made by the courts, anyway (also known as case law or court law).

Evaluate the effectiveness of Australia's Constitution in protecting human and democratic rights
Australia's Constitution is effective at protecting human and democratic rights to an extent. The representative system set up by the Constitution (especially sections 7 and 24) ensures that the government will not treat citizens unfairly or violate their rights out of fear that they will lose office. Similarly, the government will not be able to act in a way that voters believe is unacceptable due to regular elections, which provide an opportunity for any rights' abuses to be "corrected" by the voters. This is because they can elect new law-makers that will remove laws infringing any rights.

However, this does not ensure that the rights of unpopular minorities (such as asylum seekers) will be protected. If parliament passes laws that breach their rights, the majority may be unaware or indifferent of this abuse; they may not vote the government out. Even if the majority do want to remove the government and elect new law-makers, they cannot do so until the three-year term of parliament has ended - this means that any rights' abuses in the meantime will go uncorrected, and does not help those who have already had their rights infringed.

Another reason it is effective is because the 5 express rights are entrenched. This means that (due to the referendum process in section 128) they cannot be removed without the consent of the voters. Express rights and the implied right are all fully enforceable, which means that any law made by the Commonwealth that violates one of these rights can be declared invalid by the High Court when challenged.

Despite this, it is ineffective as the express rights are very limited (both in operation and number). An example of this is the right to trial by jury (section 80) which is limited to Commonwealth indictable offences. However, the Commonwealth decides which offences are indictable, and most criminal laws are made by the states.

^And maybe mention the separation of powers too, somewhere.

¹ I don't think this right prevents the states from legislating about religion, though.
² Not sure if you're clear about this or not, but just in case: there is no right to vote. (A right is something that can't be taken away, and you can be prevented from voting for substantial reasons, like conviction of treason. That's just a brief explanation.)

I'm guessing the question(s) worth the most marks on your SAC will be something to do with comparing Australia and Canada, and/or evaluating the effectiveness of Australia's Constitution in protecting human and democratic rights, so make sure you know those really well.

[ThyJovan]

¹ I don't think this right prevents the states from legislating about religion, though.

That's right. They cannot pass laws that prohibits free exercise of any religion, however,  this can be limited because of national security or to ensure that people follow the law.

[12345luke]

Awesome! Thanks guys!
I haven't sat the sac yet because I have been a bit sick, so hopefully I will sit it tomorrow or something !