* Note that students only need to be able to compare Australia’s approach to the protection of rights with one of the following countries: Canada, New Zealand, South Africa, United States of America.

To maximise marks, students need to be able to compare Australia’s approach to the approach of another country in four distinct ways:

1. The way rights are protected (i.e. whether rights are entrenched, whether the country has a Bill of Rights)
2. The type and scope of rights protection (how many rights are protected)
3. The strength and enforceability of rights
4. How easily rights can be removed

If comparing Australia to the United States of America, students can also discuss implied rights.

How rights are protected

Australia

Australia has no Bill of Rights, but protects some rights within the Constitution of Australia.

Canada

Rights of Canadians are protected by the Charter of Rights, which was added to the Canadian Constitution in 1982.

New Zealand

The Bill of Rights Act was passed in 1990. It is a piece of legislation that is not constitutionally entrenched.

South Africa

The South African Bill of Rights is contained in Chapter Two of their Constitution.

United States

The United States has a Bill of Rights which is presented as the first 10 amendments to the U.S.  Constitution.

Type of rights protection

Australia

Australia does not have an extensive or broad list of rights. The Constitution only contains five express rights, including section 80, which guarantees the right to trial by jury for indictable offences against the Commonwealth.¹

Canada

The Canadian Charter of Rights has an extensive list of rights, including a right to “life, liberty and security of the person”.²

New Zealand

Rights in New Zealand are more extensive and much broader than in Australia, including many key democratic and civil rights, right to life and security, and freedom from discrimination.³

South Africa

South Africa has an extensive and comprehensive list of rights, including section 13: freedom from being “subjected to slavery, servitude or forced labour”

• Unlike other Bills of Rights, South Africa includes extensive economic, social and cultural rights⁴

United States

There is now an extensive list of rights, including the First Amendment, which guarantees freedom of religion, speech and assembly.⁵

Strength & enforceability

Australia

The High Court can declare legislation invalid if it is outside parliament’s powers. As rights in Australia are phrased as restrictions on the Commonwealth, the High Court can therefore state that parliament does not have power to make laws in areas of entrenched rights.

Canada

Rights in Canada are fully enforceable. This means that legislation infringing any rights is declared invalid by the Canadian Supreme Court.

New Zealand

Rights are not fully enforceable. Courts can not declare legislation invalid if it infringes the Bill Of Rights Act (BORA). However, courts do interpret legislation in accordance with the BORA.

South Africa

South African rights are fully enforceable. The Constitutional Court will declare invalid any legislation that infringes any constitutional rights.

United States

Rights are fully enforceable. The US federal courts can declare legislation infringing any constitutional rights rights invalid.

Amending citizens’ rights

Removing rights

Australia

Rights are entrenched, but can be abolished through referendum process. The double majority provision within the referendum process means that referenda are hard to pass.

• Unlike other countries, Australia has no provision stating that constitutional rights can be limited when necessary and justified.

Canada

Rights are entrenched, but can be abolished if the Constitution is amended. The Canadian Constitution can be amended in a referendum process that is very similar to Australia’s.

• Some rights, including the right to vote, can never be overridden by parliament.⁶
• However, parliament can pass legislation stating that it will override the Charter of Rights. This legislation has a sunset clause, meaning that it will end after five years, unless parliament passes the legislation again.
  • Some rights can be limited where justified.

New Zealand

Parliament can abolish rights by amending the BORA. Amendments to BORA do not have to be voted on by the people.

South Africa

Rights can only be abolished through constitutional amendment. However, some rights can be limited where justified.

United States

Rights are entrenched, but can be abolished through Constitutional amendment. This includes a very complicated process, in which the proposed change must be passed by two thirds of Congress and three quarters of the states.⁷

Implied rights

Australia

In Australia, there is an implied right to political communication.

United States

The United States Constitution implies a right to privacy, including between patient and doctor.

See also:

Constitutional protection of rights

Effectiveness of rights protection in Australia

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1. The Australian Constituiton, section 80, http://australianpolitics.com/text/80.shtml  ↩

2. Justice Laws Website, “Constitution Act, 1982”, http://laws-lois.justice.gc.ca/eng/const/page-15.html  ↩

3. New Zealand bill of Rights Act 1990, http://www.legislation.govt.nz/act/public/1990/0109/latest/DLM224792.html  ↩

4. Western Cape Government, Bill of Rights, http://www.westerncape.gov.za/legislation/bill-rights-chapter-2-constitution-republic-south-africa  ↩

5. Cornell University Law School, “First Amendment”, http://www.law.cornell.edu/constitution/first_amendment  ↩

6. Justice Laws Website, “Constitution Act, 1982”, http://laws-lois.justice.gc.ca/eng/const/page-15.html  ↩

7. archives.gov, “Constitutional Amendment Process”, http://www.archives.gov/federal-register/constitution/  ↩