Sample
Express Right
Trial by jury: s 80
Section 80 of the Constitution appears to guarantee a right to trial by jury for offences arising under Commonwealth laws.
Section 80 applies if there is a trial on indictment, but leaves it to the Parliament to determine whether any particular offence shall be tried on indictment or summarily: Kingswell v The Queen (1985)
• Does not apply to summary offence: R v Archdall & Roskruge; Ex parte Carrigan and Brown (1928)
Consequence of the s 80
• Defendant can’t elect to waive the right to jury: Brown v The Queen (1986)
• Jury unanimity is an essential element of the “trial by jury” guaranteed by s 80: Cheatle v The Queen (1993)
Freedom of religions: s 116 s 116 contains four separate guarantees: the Commonwealth shall not make any law
• “for establishing any religion”,
• “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”.
What is a religion? Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) (1983. (not a rigid test)
• Belief in the supernatural (what extends beyond the senses)
• Ideas relating to man’s nature and place in the universe and his relation to things supernatural.
• Requirements that adherents engage in particular conduct
• Ability to recognise adherents as a identifiable group
• Recognition by adherents themselves of their beliefs & practices as constituting a particular religion.
Establishment clause
• In the interpretation and application of s 116, the establishment of religion must be found to be the object of the making of the law.
Further, because the whole expression is “for establishing any religion”, the law... must have that objective as its express and single purpose: DOGS case (1981)
‣ Therefore, government funding of church schools does not amount to an “establishment” of religion in this case.
Free exercise clause.
• Cannot legislate
Trial by jury: s 80
Section 80 of the Constitution appears to guarantee a right to trial by jury for offences arising under Commonwealth laws.
Section 80 applies if there is a trial on indictment, but leaves it to the Parliament to determine whether any particular offence shall be tried on indictment or summarily: Kingswell v The Queen (1985)
• Does not apply to summary offence: R v Archdall & Roskruge; Ex parte Carrigan and Brown (1928)
Consequence of the s 80
• Defendant can’t elect to waive the right to jury: Brown v The Queen (1986)
• Jury unanimity is an essential element of the “trial by jury” guaranteed by s 80: Cheatle v The Queen (1993)
Freedom of religions: s 116 s 116 contains four separate guarantees: the Commonwealth shall not make any law
• “for establishing any religion”,
• “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”.
What is a religion? Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) (1983. (not a rigid test)
• Belief in the supernatural (what extends beyond the senses)
• Ideas relating to man’s nature and place in the universe and his relation to things supernatural.
• Requirements that adherents engage in particular conduct
• Ability to recognise adherents as a identifiable group
• Recognition by adherents themselves of their beliefs & practices as constituting a particular religion.
Establishment clause
• In the interpretation and application of s 116, the establishment of religion must be found to be the object of the making of the law.
Further, because the whole expression is “for establishing any religion”, the law... must have that objective as its express and single purpose: DOGS case (1981)
‣ Therefore, government funding of church schools does not amount to an “establishment” of religion in this case.
Free exercise clause.
• Cannot legislate