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