Comparative Approaches to Protection of Human Rights

Learning Intention Australia’s constitutional approach to the protection of rights and the approach adopted in South Africa 2Justice & Outcomes 13e ISBN © Oxford University Press Australia, 2015 Success Criteria Evaluate the means by which rights of Australians are protected by the Commonwealth Constitution and the extent of this protection. Compare the approach used to protect rights in a selected country with the approach used in Australia.

Comparative Approaches Many countries set out the human rights of individuals in a Bill of Rights. In some countries human rights are entrenched or established in the Constitution. (referendum required to amend) Canada, USA, South Africa Other countries define a statutory Bill of Rights (may be amended or repealed in the same manner as any other law) New Zealand 3

Limitation Clause Both entrenched and statutory Bill of Rights may contain a ‘limitation clause’ Limitation Clause – Recognises that a right exists but imposes a limit to the extent to which that right applies.(eg absolute freedom of speech may conflict with rights not to be discriminated against on the basis of sex, race or religion.) – Important as they allow courts to limit the extent to which a right is acceptable in a democratic system of government. 4

How Can Rights be Enforced? Interpretive Approach – Provides a remedy for an individual bringing a claim. Allows court to declare that a law is incompatible with a Bill of Rights (where it exists) Watchdog Approach – Sets up a human rights body to monitor the right established. May also provide for education and dispute resolution processes. Complaints-based approach – Allows an individual to bring an action before a court or tribunal to obtain an enforceable remedy for a breach of their rights. 5

Making a Comparison Is a Bill of Rights an effective method of protecting democratic and human rights? Bills of Rights differ significantly from Country to Country. Each approach to the protection of democratic and human rights reflects the history and culture of a country. 6

Comparison: Australia and South Africa Chapter 2 of the Constitution of the Republic of South Africa Act of 1996 contains a Bill of Rights Bill of Rights contains a comprehensive list of civil, political, economic, social and cultural rights which are entrenched. For example: – General right to freedom of speech – Right to vote for all citizens – Equality and the right to equal protection – Right to life and dignity – No slavery, servitude or forced labour – Freedom of religion, belief and opinion Separation of powers is protected – Constitutional Court is able to keep a check on the legislature – Parliament cannot overrule decisions of the Constitutional Court relating to the interpretation of the Constitution 7

Comparison: Australia and South Africa Some rights can be limited by parliament in extreme situations such as a state of emergency Rights are fully enforceable. Legislation that violates rights can be declare unconstitutional by any competent court, and declared invalid by the Constitutional Court Any individual or group can bring action alleging a right has been infringed (interpretive approach), whereas in Australia the individual or group bringing the action must be directly affected Courts, tribunals and forms must promote the spirit and purpose of the Bill of Rights Courts can award damages where rights have been infringed No referendum process, but must be passed by two-thirds of the National Assembly and supported by six of nine provinces Comparison table: see page 192 8

AustraliaSouth Africa Entrenched or statutory Entrenched What rights are protected? Express rights Implied right to freedom of political communications. There is no comprehensive Bill of Rights A Bill of Rights covering Equality of rights Civil and political rights Legal process rights Social and economic rights Are rights limited?No limitation clause Limitation clause – limitations that are justifiable in a free and democratic society The state must take reasonable action within available resources to implement rights Justice & Outcomes 13e ISBN © Oxford University Press Australia,

AustraliaSouth Africa How are they enforced and interpreted? Courts interpret and enforce rights. High court can declare laws that infringe right invalid Courts interpret and enforce rights. Constitutional Court can declare laws invalid. Courts act in a manner tat is consistent with the Bill of Rights when developing the common law What remedies are available? Legislation that infringes rights can be declared invalid. Courts can award damages or grant an order to stop any conduct that is unconstitutional. Courts can give the body that made the law time to change the law. Can the rights be changed? Referendum process 2/3 majority of National Assembly and provincial parliaments. Justice & Outcomes 13e ISBN © Oxford University Press Australia,