Express Rights ..z.z.z.z.

[destain]

What exactly is an express right?
The book seems to be contradicting itself, one second saying that express rights HAVE to be entrenched in the constitution and the next saying it can also be unentrenched and therefore be in a bill of rights...

[Wazzup]

Express rights:
 
An express right is a right clearly given to the people in the words of the Constitution.

They cannot be altered/removed without a referendum process.

There are five express rights: 

Right to "just terms" with the compulsory acquisition of property in section 51 (xxxi)

Right to trial by jury in section 80

Right to free interstate trade and trade in section 92

Freedom of religion in section 116

Freedom from discrimination based on one's state of residence in section 117

[meganrobyn]

In Aus our express rights are in the Const and so that is a great definition.

Where the textbook might be confusing is that *some* countries have a bill of rights in a normal statute outside the constitution.

So Aus express rights are entrenched; RSA, USA etc express rights are entrenched; but Vic and NZ express rights, for example, are not. They are only statutory.

[destain]

So if there was an exam question like
Define express rights
I give the definition of australian express rights and not the general definition which includes the express rights that are in a statutory bill of rights?

[nacho]

Yea, when thinking express rights, just think of 'expressly stated in the constitution'
there is no need to talk about the bill of rights unless you get to comparisons, because afaik australia doesnt have a bill of rights.

[destain]

Just in regards to what meganrobyn said, in chapter 4 of justice and outcomes, it goes on about rights protected thorugh acts of parliament or common law and whether australian should have a bill of rights or not, I don't need that for the exam then? since the study design relates to protection of rights by the constitution

Also a weakness of the commonwealth constitution as a means of protecting rights is : if rights were protected under a bill of rights contained in the constitution, the courts would be called on to interpret the rights contained in the bill of rights, giving the judiciary more power and making the high court justices the final arbiter of what rights should exist in society rather than the parliament  which is elected by the people.

But isn't the high court called upon to interpret rights in the constitution as well...

[meganrobyn]

Just in regards to what meganrobyn said, in chapter 4 of justice and outcomes, it goes on about rights protected thorugh acts of parliament or common law and whether australian should have a bill of rights or not, I don't need that for the exam then? since the study design relates to protection of rights by the constitution

Also a weakness of the commonwealth constitution as a means of protecting rights is : if rights were protected under a bill of rights contained in the constitution, the courts would be called on to interpret the rights contained in the bill of rights, giving the judiciary more power and making the high court justices the final arbiter of what rights should exist in society rather than the parliament  which is elected by the people.

But isn't the high court called upon to interpret rights in the constitution as well...

1. Yes, you're completely right - you don't need any of that info about the rights we have protected in statute and the common law! People try to squeeze it into the exam every year because it's in the textbook, but it's almost never relevant or marks-getting, sadly.

2. Yes, you're right again! The HCA interprets and enforces constitutional rights any time a case arises regarding them - and they have the power to invalidate law made by the elected parliament if if infringes those rights! It has nothing to do with a bill of rights and everything to do with the nature of entrenched rights.

You seem to understand the law well. Never forget that it's just another human being writing the textbook, who can easily be mistaken or ambiguous. I think you should trust yourself, and if something seems logical or logically incorrect, it probably is!

[destain]

Yeah, it has many bits that seem to overlap each other and many contradicting statements...Really confuses me sometimes, and my teacher forces us to remember all the examples for each part studied in the book and years and details of each case, it's so time consuming to memorise all this D:

Especially the comparison we are doing with Australia and Canada, so many little details that are kind of suspicious...

and what are our express rights, i''ve learnt 5 and my teacher clearly told us those are express rights, but my friends in other schools tell me there are 7, including right to vote and right to review gov action....

I thought the right to vote is protected by the structre and text of the constitution and is not an express right? someone please explain

[meganrobyn]

The five mentioned in one of the above posts are the recognised ones.

There is no personal, individual right to vote - it is a structural protection in that the people of Australia have a collective right to a democratically elected parliament.

With the reviewing of government action, it sounds like another structural protection derived from the principle of the sep of powers.

[serendip]

and what are our express rights, i''ve learnt 5 and my teacher clearly told us those are express rights, but my friends in other schools tell me there are 7, including right to vote and right to review gov action....

I thought the right to vote is protected by the structre and text of the constitution and is not an express right? someone please explain

I think those two might be implied rights?

[meganrobyn]

and what are our express rights, i''ve learnt 5 and my teacher clearly told us those are express rights, but my friends in other schools tell me there are 7, including right to vote and right to review gov action....

I thought the right to vote is protected by the structre and text of the constitution and is not an express right? someone please explain

I think those two might be implied rights?

No, they're structural protections as in my post above. There is only one implied right affirmed by a majority of the HCA: the freedom of political communication.

[Newton]

and what are our express rights, i''ve learnt 5 and my teacher clearly told us those are express rights, but my friends in other schools tell me there are 7, including right to vote and right to review gov action....

I thought the right to vote is protected by the structre and text of the constitution and is not an express right? someone please explain

I think those two might be implied rights?

No, they're structural protections as in my post above. There is only one implied right affirmed by a majority of the HCA: the freedom of political communication.

My teacher also told us there are 5 express right, as mentioned earlier and two implied right (3.3). The two implied rights are the right to vote and freedom of political speech?

[Iniquity]

My teacher also told us there are 5 express right, as mentioned earlier and two implied right (3.3). The two implied rights are the right to vote and freedom of political speech?

The ability to vote isn't a right at all, because not everyone can vote, and rights are legally-protected entitlements that are granted to everyone and cannot be taken away or breached. Voting can be taken away based on unsoundness of mind, whether you've committed treason (since you've tried to destroy the system, it makes sense that you're removed from it) and if you've been imprisoned for longer than three years (as it's likely you've committed a major crime - less serious offences will generally warrant shorter jail terms).

Sections of the Constitution like 7 and 24 make it look like there's a right to vote by saying that members of the House of Reps and Senate must be "directly chosen by the people", but it doesn't specify who "the people" are. It is therefore up to the Commonwealth to determine who can or cannot vote.

[Newton]

So if I'm asked about implied right in the exam I refer to freedom of speech not right to vote? What is the right to vote than? Its not express?

[Iniquity]

So if I'm asked about implied right in the exam I refer to freedom of speech not right to vote? What is the right to vote than? Its not express?

For the implied right, you'd need to mention the freedom of communication on political matters relevant to the Australian political system (and refer to the Australian Capital TV, Theophanus, and Lange cases if need be).

Voting isn't an express or implied right. It's not a right at all; it's a form of structural protection.