Transcript 3.3 – The means by which the Constitution protects rights

Some rights were considered so important they
were expressly stated in the Constitution.
Freedom of religion, the right to trial by jury (for
Commonwealth indictable offences), the right not
to be discriminated against because of place of
residence, freedom of interstate trade and the
rights of citizens to be compensated justly if their
property is acquired are the few express rights
that are included in the Constitution.
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An express right is a right that is clearly given
to the people in the words of the Constitution
They are also known as entrenched rights
They can only be changed through a
Referendum
There are five express rights
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116. The Commonwealth shall not make any law for
establishing any religion, or for imposing any
religious observance, or for prohibiting the free
exercise of any religion, and no religious test shall
be required as a qualification for any office or public
trust under the Commonwealth.
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Section 116
 Four ways it protects this right
 The Commonwealth cannot;
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Establish a national religion through making laws
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Require religious observance (ie take an oath)
3.
Stop people from freely practicing their religion
4.
Impose a religious test as a prerequisite for a
public job
This section of the Constitution only applies to
Commonwealth Powers and does not mention the
ability of the state parliaments to make laws in
relation to religion
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80. The trial on indictment of any offence against any
law of the Commonwealth shall be by jury, and every
such trial shall be held in the State where the offence
was committed, and if the offence was not committed
within any State the trial shall be held at such place or
places as the Parliament prescribes.
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Section 80
 “The trial on indictment of any offence against
any law of the Commonwealth shall be by
Jury”
 This means that those that commit an
indictable (serious) Commonwealth offence can
have their case heard by a jury
 It does not extend to state law
 It is considered an important right as it allows
to be tried by ones own peers
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The Commonwealth can decide which are
indictable offences
Most indictable offences are state offences
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51. The Parliament shall, subject to this Constitution,
have power to make laws for the peace, order, and good
government of the Commonwealth with respect to:
(xxxi.) The acquisition of property on just terms from
any State or person for any purpose in respect of which
the Parliament has power to make laws.
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Section 51(xxx1)
 An important right to own property
 It is included in the UN Declaration of Human
Rights
 This section gives the Commonwealth power to
take property from states and individuals
 However the Constitution requires them to pay
“just terms” or a fair and reasonable level of
compensation eg The Castle
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Individuals do not have a choice, they must
accept the fact that property will be acquired
even if they do not want more compensation
Question; Why do you think land would be
acquired during the time of Federation and
therefore written in the Constitution?
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117. A subject of the Queen, resident in any State,
shall not be subject in any other State to any disability
or discrimination which would not be equally
applicable to him if he were a subject of the Queen
resident in such other State.
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Section 117
 This section bans discrimination on the basis of
the state in which a person lives
 Limitation?
 Makes no other mention about discrimination
 Eg sexual, racial etc , and this was at a time of
women and the Indigenous not being able to
vote
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92. On the imposition of uniform duties of customs,
trade, commerce, and intercourse among the States,
whether by means of internal carriage or ocean
navigation, shall be absolutely free.
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Section 92
 Trade and commerce between states must be
‘absolutely free’
 The movement of people is also included
 Limitation
 Movement of people is not absolute. Eg. AMS
v. AIF (1999) High Court did not lift an
injunction on a mother moving her daughter
interstate (page 99)
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5 Express Rights protected by the Constitution;
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51 xxxi
S 80
92
116
117
Property
Jury
Trade
Religion
Residential
Using the creative part of your brain (yes we all
have some level of creativity) , create a diagram,
picture, etc. to enable you to remember the 5
express rights AND the relevant section number.
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How well do you think our Constitution protects
our express rights?
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Give a percentage
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Give your reasons why
%
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Answer Questions
1 – 6 (Page 99)
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