Constitution - Topic 07 Limitations

Constitution - Topic 07 Limitations - Constitutional and...

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Constitutional and Administrative Law 7 – Limitations (Legislative) Page 1 of 45 P ART VII L IMITATIONS ON L EGISLATIVE P OWER I Express Rights and Freedoms A Rights Protection in Australia 1 Common law The common law offers relatively little protection to human rights and freedoms. Although certain processes and causes of action operate to curtail the extent to which power may be used to deprive an individual of their rights, no guarantees of those rights are provided. Thus, the common law writ of habeas corpus can be granted to remedy unlawful imprisonment, but offers no prima facie protection of the right to liberty. Freedom of religion is not protected at common law ( Grace Bible Church v Reedman ). 2 Statute Several statutes have been enacted which offer some protection to human rights: Racial Discrimination Act 1975 (Cth) Sex Discrimination Act 1984 (Cth) Disability Discrimination Act 1992 (Cth) However, more commonly legislation will override rights conferred by the common law (as in Durham Holdings Pty ltd v New South Wales ). 3 State constitutions The phrase ‘peace, order and good government’ in s 2(1) of the Australia Act 1986 (Vic) does not constitute any limitation upon state legislative power ( Union Steamship Co of Australia Pry Ltd v King ; Kable v DPP ). Rather, it is a conferral of plenary power upon the Victorian Parliament. This means that the state parliaments can legislate inconsistently with human rights if they so choose. The situation is somewhat different in the Australian Capital Territory since the enactment of the Human Rights Act 2004 (ACT). However, such legislation relies more on political limitations than legislative ones to discourage laws inconsistent with rights protection. No right to compensation exists for the acquisition of property by a state government: Durham Holdings Pty ltd v New South Wales . 4 Commonwealth Constitution Not incorporating a Bill of Rights, the Commonwealth Constitution contains relatively few instances of human rights recognition. Indeed, some provisions were almost certainly intended by the framers to be used to the opposite end (see, eg, s 51(xxvi)). Broadly, the rights protected by the Constitution may be grouped into two types: express and implied.
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Constitutional and Administrative Law 7 – Limitations (Legislative) Page 2 of 45 The express rights commonly alleged to be found within the Constitution are the following. Where relevant, articulated limits are noted: Section Right protected Directed at Limits 24 Right to democratic election Commonwealth Parliament; minimum requirement that members are ‘directly chosen by the people’ McGinty : not ‘one vote, one value’ but may include adult suffrage Mulholland : ‘free and informed choice’ 41 Right to vote? This section does not create any such right 51(xxxi) Right to just compensation for compulsory deprivation of property Commonwealth Parliament (but not states) Scope of parliamentary heads of power 80
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Constitution - Topic 07 Limitations - Constitutional and...

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