Dear Readers,
Here is the fifth question:
Compare Australia’s approach to the consitutional protection of democratic and human rights with the approach adopted in one of the countries listed above. In your answer, evaluate how effective the Commonwealth of Australia’s Constitution is in protecting democratic and human rights.
Quick comment:
If I remember correctly, this is an early version of the essay I have for sale.
Answer:
Australia’s approach to the constitutional protection of right shares a number of similarities but also a great many differences to the approach of South Africa. Australia is the only English speaking common law country that does not have an entrenched Bill of Rights.
The nature, extent and source of the protected rights differ greatly between the two nations. The Commonwealth Constitution is limited to the protection of only 5 express rights which are scattered throughout the constitution. Largely rights are protected through legislation (eg. Discrimination Act 1991), common law and treaties (ICCPR). In contrast, South Africa has an entrenched Bill of Rights which covers a broad range of social, democratic, human, legal and economic rights that are found in Chapter 2 S7-39 of the South African constitution.
The function of the legislative branch also differs considerably between the two nations. In Australia the upper house or house of review acts to provide the necessary checks and balances to ensure that legislation does not infringe upon our rights. During the committee stage a legal and constitutional committee can be established which investigates and determines if any of the clauses are unconstitutional. This process proves effective when the government does not control both house. However in the situation where it does, the upper house becomes a rubber stamp and the necessary checks and balances are not provided. This was demonstrated in 2005 by the Howard governments Work Choices legislation which was red stamped in the upper house. In contrast under S79, the President of South Africa can return legislation back to the national congress if it is deemed to be unconstitutional, furthermore under S36 the constitution allows for a limitation of certain rights if it is “demonstrably justified”. The limitation must be done based upon proportionality as was demonstrated in the Prince Case 2002, when the court said no in order to protect that country from the use of drugs. Furthermore, the national congress must create laws in the “spirit” of the Bill of Rights.
Both nations have an independent court designed to protect constitutional rights. In Australia the High Court established under S73-5 interprets the wording of the constitution and following the Political Broadcasting case 1992 established the implied right of freedom of communication on political matters inorder to uphold the principle of representative government. However as demonstrated by the Langer Case in 1996 the High Court can limit the implied right. Furthermore in Australia, the parties must have a standing in the case. In comparison, in South Africa the parties do not require a standing. Any court can determine that a piece of legislation is unconstitutional but only the Constitutional Court can declare it invalid. As was demonstrated in the Treatment Action Campaign in 2002. In both countries the purpose of the judicial branch is to ensure that the legislative branch fulfils its constitutional obligations.
Both nations have a structural protection allowing for the alteration of the wording of the constitutions. In Australia S128 provides the people with a direct vote, then if a double majority is successful the wording is altered. This is demonstrated in 1967 when the referendum was passed to increase the rights of aboriginals. However, only 8/44 have been successful as the process is extremely rigid and the Australian people are typically sceptical of change. This trend is demonstrated in the failure of the 1988 referendum to include a mini-Bill of Rights in the Australian Constitution. In contrast in South Africa under S74, there is a representative vote, and if 2/3 of the National congress and 6/9 of the provinces agree the referendum is successful.
Yours,
JB
Legal Studies VCE 