Questions+and+Answers

=Student question: "I'm having trouble finding strengths and weaknesses for the high court"=
 * Answer:** This is not part of the Study Design here, you do not have to evaluate the strengths or weaknesses of the high court itself.

Instead, what you are being asked to do is to **explain the role of the high court in interpreting the constitution and discuss its impact.**

__Refer to the hand out "Summary: High Court and the Constitution: Legal Studies 2013", pages 3 and 4.__

The High Court has been given power by sections 75 and 76 of the Constitution to hear cases that involve disputes over the division of powers (between the Cth and the States) and matters arising under a treaty (an international agreement signed by Australia).

The High Court has taken an increasingly more **activist role** in the interpretation of the Constitution, which has resulted in a shift of powers in favour of the Cth at the expense of the states. Before the 1920s, however, the High COurt was more conservative and generally sought to maintain the powers of the states. The original framers of the Constitution (especially those representing the Colonies) wanted to ensure that the interests of the States were maintained - they were concerned about the Cth becoming too dominant and powerful. So in some ways, you could argue that the High Court's more "activist" approach and the decisions below which resulted in an expansion of the powers of the Cth are a departure from the intention of the original writers of the Constitution.

The shift towards more powers for the Cth can be seen in the High Court's decisions in key cases such as The Tasmanian Dams Case; R v Brislan and the Roads Case. You would need to know what the decision, reasoning and outcome was in those cases to respond successfully to the SAC.

In exercising its role of interpreting the Constitution, the High Court has influenced the division of powers (or balance of powers) between the Cth and the States through its interpretation of the words of the constitution.

=Student question: "Also, when contrasting USA and Australia, i'm having trouble elaborating on the strengths and weaknesses between the two..."=

I've put up more examples of practice questions and answers, some of which may help you with this question.

When elaborating, it is not enough to just briefly mention the difference. For example, **"The USA has a Bill of Rights whereas Australia does not."**

What you need to do is to also expand on your answer by providing examples or explaining what the possible outcome of this difference might be. For example, a better response would be: **"The USA has a Bill of Rights, which are a set of amendments to the Constitution, protecting citizens from the power of the government. These rights are mainly civil and political and include freedom of speech, religion and assembly. Australia, however, does not have a Bill of Rights. Even though the rights in our constitution are entrenched just like America's, we only have five express rights in our constitution and these are also limited."**


 * __Refer to the table on page 141 of your textbook for further differences and similarities between Australia and USA.__**

http://m.theage.com.au/world/unfinished-business-dogs-a-difficult-second-term-20130501-2ita1.html

The link above to The Age article highlights what happens when you have total separation of powers between the Legislature and the Executive, as exists in the USA. In this case, the Executive (Obama) is considered to be the most powerful man in the world. Yet because he and his Executive team do not sit in the Legislature (Congress) and cannot tell the Legislature what to do, sometimes he in fact seems to be powerless, rather than powerful.This article highlights how frustrating it can be for him that some of his policies and aims cannot be implemented because the Legislature does not agree with them - their checks and balances prevent him from using his power in a way that the Legislature does not like. In Australia, we also have a separation of powers but this is not a strict separation, especially between our Executive and Legislature (since members of Cabinet are also members of Parliament).

=Student question: "Lastly, I'm a little confused with statutory rights and entrenched rights. Are statutory rights implied rights? And are entrenched rights express rights? Because in the 'suggested answers booklet' question 5 answered Australia does not have entrenched nor statutory rights."=


 * Firstly,** statutory rights ARE NOT implied rights. **Statutory rights** are created by an ordinary Act of Parliament - they come from the statute laws passed by Parliament. Because Parliament created them, Parliament has the ability to change or remove them (just by passing another Act or repealing the old Act).


 * Secondly,** implied rights come from High Court interpretation of the Constitution. They are not expressly written in the Constitution, unlike **express rights** which ARE written in the Constitution. We say that these rights are **entrenched** because they are established in the Constitution and cannot easily be changed. Parliament does not have the authority to change these rights on its own - it must be changed through a special process - a "referendum" in the case of Australia, or some other similarly complex process in other countries such as America. Note that both countries require majority support.


 * Thirdly,** from the information above, we can conclude that Australia does indeed have both entrenched rights (the rights given to us by the Constitution) and statutory rights (rights created by Acts of Parliament). If you read the sample answer to Question 5 again, you'll notice that what it actually says is Australia does not have a Bill of Rights (neither entrenched or statutory) - which means that we do not have an entrenched Bill of Rights like the USA nor a statutory Bill of Rights like New Zealand. BUT, we still have entrenched rights! They are found in our Constitution. A Bill of Rights is simply a document that sets out (or lists) the key democratic and human rights that are important and protected by a particular country.

=This is a great resource for comparing Australia and the USA:=

=More Practice Questions and Answers to prepare for SAC 2:=

=Your questions from Wednesday's class:=