Comparison between Australian and South African Approaches

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.

Australia and South Africa- SIMILARITIES 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.

Australia and South Africa- DIFFERENCES 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.

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

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)