Contrasting Approaches: Australia vs South Africa in Rights Protection

1. Comparison between Australian and South African Approaches

2. South Africa v’s Australia Similarities • Express rights are entrenched and can only be changed by the methods used to change the constitution. • Rights are fully enforceable by the courts. They can declare a legislation to be invalid and this cannot be overruled by parliament. • Structural protection of rights in South Africa operates the same way as in Australia. Further to this the role of the upper and lower houses of parliament are similar. • In both countries their citizens are protected by the principle of separation of powers and they both have an independent High Court. Differences • South Africa’s Bill of Rights has an extremely extensive list of expressed rights – more than Australia. • South Africa’s Bill of Rights contains a limitations clause, allowing certain rights to be limited but this is not available in Australia • South African courts offer remedies to parties whose freedoms have been infringed; this is not an option for the High Court of Australia, where a separate action would be needed. • Courts in South Africa are required to interpret legislation in light of the Bill of Rights. • A referendum is needed in Australia before a change in the constitution can take place. In South Africa the parliaments make the changes.

3. Australia and South Africa- SIMILARITIES South Africa • Many rights entrenched within its Constitution are similar to Australia e.g. Freedom of religion. • Rights can only be altered, removed or added by amending the Constitution. Does not require a referendum. Must be passed by two-thirds of the National Assembly members and then supported by at least 6 of the 9 provinces. • Individuals or groups can bring a complaint that as act infringes their rights set out in the Bill of Rights. • A court can find that a section of an act is unconstitutional because it contravenes one of the express rights and therefore the relevant section of the act is invalid. Australia • Some rights entrenched within the Australian Constitution. • Rights specified in the Constitution can only be removed or added by amending the Constitution through a referendum. Double majority required. • Individuals or groups can bring a complaint that an act infringes on their rights set out in the Constitution, although they have to be directly affected. • A court can find that a section of an act is unconstitutional because it contravenes one of the express rights and therefore the relevant section of the act is invalid.

4. Australia and South Africa- DIFFERENCES South Africa • List of expressed rights is extensive. • The list of protected rights includes economic, cultural and social rights. • Individuals and groups can bring a complaint that as act infringes rights set out in the Bill of Rights. They do not need to be directly affected. • In addition to declaring legislation invalid, the courts can make another appropriate remedy, such as award damages where the rights have been infringed. • Referendum is not needed to change a Bill of Rights, although the amendment must be passed by two-thirds of the National Assembly and supported by 6 out of the 9 provinces. Australia • There are only 5 protected rights specified in the Constitution, plus the right of political communication which is classified as an implied right. • There is no protection for economic, cultural or social rights. • A person bringing a complain that an act infringes rights set out in the Constitution needs to be directly affected. • The approach in Australia is to focus on declaring the legislation either valid or invalid. • A referendum is needed before a change in the Constitution can take place.

5. Question Time  • Complete questions; 1-13 on page 167

6. Case Studies- Read as a class • Read the South Africa- Same Sex Marriages case and answer questions 14 a, b, c. (Page 168) • Read the case South Africa- Discrimination for Wearing a nose stud an complete questions 16 a, b, c (page 169)