4: Protection of rights

S.A express rights

Contains extensive list of protected human rights e.g. equality, dignity, life and freedom these rights are entrenched and can only be removed by a constitutional amendment

Express rights

5 rights entrenched into the Constitution S116- freedom of religion S117- not to be discriminated on the basis of the state in which you reside in S92- free interstate trade and commerce S80- right to trial by jury for an indictable offence S51 (xxxi)- right to just terms upon acquisition of property by the government

S.A Enforcement of rights

fully enforceable legislation that violate express rights can be declared unconstitutional by courts and declared invalid by the Constitutional court

South Africa

Constitution of the Republic of South Africa Act 1996 Bill of rights in Chapter 2 Enshrines rights of all South Africans Contains social, economic, cultural and environmental rights affirms democratic values of human dignity, equality and freedom

Protection of rights

Express rights Implied rights Structural protection of rights

Enforcement of rights

High Court hears cases and interprets the words of the Constitution Cth. Parliament cannot override a High Court decision

Implied rights

Not explicitly stated in the Constitution but are implied through statutory interpretation carried out by the High Court e.g. freedom of political communication, Australian Capital Television Pty Ltd v. The Commonwealth of Australia

Representative government

Representative government refers to a government's need to represent the views of majority of people in society. This is established under S7 and S24 of the Constitution In order for a government to be representative, regular elections must be held for voters to decide who they want to represent them in Parliament. Representative government protects individual rights as it gives the people the right to vote for representatives that they believe will reflect their needs and beliefs as best as possible.

S.A structural protection of rights

Representative government: S19(2), guarantees the right to vote for all citizens Separation of powers: legislature makes laws and monitors executive, executive makes policy, proposes and implements laws and judiciary hears disputes and administers justice

Responsible government

Responsible government refers to a government's duty to be held accountable to the voters for their actions. Ministers are to carry out their duties with integrity and propriety and are subject to questioning with regards to their actions and that of their departments. If government loses support from the lower house, it is to resign. This notion protects individual rights by ensuring that citizens are governed by a government that has the confidence of the lower house, hence reflecting the views of the people.

Differences

Rights that would be protected under the Australian Constitution are listed under a bill of rights in South Africa. For example, S19(2)- right to vote. This right would be protected under structural protection as the Constitution outlines that the members of the Senate and House of Representatives must be voted directly by the people

Differences

South Africa has comprehensive bill of rights. Rights protected include: equality, human dignity, life and privacy. On the other hand, the Commonwealth Constitution in Australia only contains 5 express rights: S116, 117, 92, 80, 51(xxxi)

Structural protection of rights

The Constitution provides mechanisms for indirect protection of rights for Australian citizens in their dealings with Commonwealth Parliament. Structural protection of rights provides for separation of powers, responsible and representative government and the High Court as the final arbiter of the power of the Commonwealth.

Similarities

both have entrenched rights in the Constitution e.g. freedom of religion rights are fully enforceable by the courts individuals and courts can bring a complaint that an act in infringing upon rights rights can be added, removed or altered

Separation of powers

The principle of separation of powers refers to the three separate arms of powers in our parliamentary system. Legislative, judicial and executive power Separation of powers prevents power from being vested in one single body therefore protecting individual rights by providing checks and balances on parliament to ensure they do not exceed their area of power.

Evaluation of protection of rights

There are only 5 express rights protected by the Constitution however, they can only be altered or removed through the referendum process outlined in S128.