LLB 100 Lecture 3: Week 3 - The Constitutional Framework, Division of Powers
Week 3 – The Constitutional Framework
Constitution – sets out the institutional arrangements by which nations, associations or
other groups of bodies are governed
Austalia’s head of state is the Quee/Goeo Geeal
Queen > Governor General > Parliament
The preamble is an introductory statement that reflects the values, history and politics of
the nation at the time the Constitution was formed. The Australian Constitution preamble
only refers to the Queen and the Parliament of the United Kingdom and precedes Covering
Clauses of the Imperial Act which created the Constitution. It is therefore a preamble to the
Imperial Act, not the Constitution
Indigenous People and the Constitution
• Still invisible in constitutional terms more than a century after the doctrine of terra
nullius
• First drafted → only two negative references:
1. S 51 – sets out ost of the Cooealth’s legislatie poes
“ 51i gae the Cooealth the poe to ake las ith espet to the
people of any race, other than the aboigial ae i a “tate
2. S 127 – poided that Aoigies ee’t to e outed i ekoig the
numbers of the people of the Commonwealth, or of a State or other part of the
Cooealth
• Both provisions amended in 1967
• These original sections illustrate that the Constitution is a cultural construct,
reflecting the values and beliefs of the society of which it is part
Rights
• No bill of rights in the Constitution
• Whe it as eig dafted, hua ights ee’t a pioit
• The people who needed protectio did’t hae the poe to asset the ipotae
of fundamental rights
• Contains an implied right of freedom of political communication – High Court held in
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106
• Few express rights:
- S 41 – right to vote
- S 51(xxxi) – protection against acquisition of property on unjust terms
- S 80 – right to trial by jury
- S 116 – right to freedom of religion
Arguments for and against a bill of rights
Arguments for
Arguments against
Common law does not adequately protect
human rights
Rights are well protected by common law
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Statute law does not protect human rights
effectively, particularly where parliament
passes laws infringing on rights with limited
review
Statute law protects human rights well;
statutes can be written to deal with existing
human rights problems as the need arises
Rights contained in international
documents could be better guaranteed
Parliament is the best protector of rights
through recognition of international law
and implementing it in statute
The democratic system does not always
protect individual or minority rights against
those of the majority
The democratic system best protects
people rights with a free media and the
separation of powers
Judges will be able to protect human rights
more effectively by interpreting a charter of
rights. Rights would be put above politics
Judges become involved in making political
decisions as a result of a generally drawn
charter of rights
Parliaments decision making would
improve, as they would have to consider
the charter in making their decisions
Parliament may be inhibited in its need to
govern by the possibility of legislation being
efeed ak to the paliaet a judge’s
interpretation of a charter of rights
A charter of rights would educate the public
about human rights
Society is best educated about human
rights through the media and the education
system
Would encourage tolerance and
acceptance of difference
Australia is already a tolerant and accepting
society
Would help preserve individuals and
minorities from the possibilities of
oppressive laws enacted by an elected
parliament
Rights of individuals and minorities are
already well protected by common law or
by legislation passed in response to such
problems by parliament
It has extremely high community support as
it reflects basic Australian values
It undermines a tradition of parliamentary
sovereignty in transferring legislative power
to unelected judges
It protects the marginalised and
disadvantaged
A major economic cost
It brings Australia into line with other
democracies
Potentially negative outcomes for human
rights
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Constitution sets out the institutional arrangements by which nations, associations or other groups of bodies are governed. Aust(cid:396)alia"s head of state is the quee(cid:374)/go(cid:448)e(cid:396)(cid:374)o(cid:396) ge(cid:374)e(cid:396)al. The preamble is an introductory statement that reflects the values, history and politics of the nation at the time the constitution was formed. The australian constitution preamble only refers to the queen and the parliament of the united kingdom and precedes covering. Clauses of the imperial act which created the constitution. Indigenous people and the constitution: still invisible in constitutional terms more than a century after the doctrine of terra nullius, first drafted only two negative references, s 51 sets out (cid:373)ost of the co(cid:373)(cid:373)o(cid:374)(cid:449)ealth"s legislati(cid:448)e po(cid:449)e(cid:396)s. Co(cid:373)(cid:373)o(cid:374)(cid:449)ealth(cid:863: both provisions amended in 1967, these original sections illustrate that the constitution is a cultural construct, reflecting the values and beliefs of the society of which it is part. Australian capital television pty ltd v commonwealth (1992) 177 clr 106: few express rights:
