Beyond the legalese and rhetoric: improving human rights protection in Australia

Wendy Lacey

Research output: Contribution to journalArticle

Abstract

The National Human Rights Consultation recently conducted in Australia and culminating in the government's new Human Rights Framework engaged a remarkable number of Australians on the question of how to better protect human rights, short of modifying the Constitution. However, the debate was frequently dominated by polemical views (often waged among lawyers) in which rhetoric and legalese flourished. Pro-rights groups almost universally supported the adoption of a Human Rights Act based on the so-called dialogue model, represented in statutes adopted in the United Kingdom, Victoria and the Australian Capital Territory. This article examines that preferred model — as supported by the report of the Consultative Committee, but ultimately not adopted by government — within the context of the Australian constitutional framework. It concludes that, although it is capable of working well at the state and territory levels in Australia, the model (at least in its present form) sits uneasily within Australia's federal constitutional context. While charter proponents have been at pains to assert the constitutional validity of the dialogue model, validity alone is not the only concern; the legitimacy of the High Court is also potentially weakened through the conferral of a remedial power incompatible with the court's role in conducting judicial review. Consequently, calls for a dialogue model charter at the federal level, containing the declaration of incompatibility as its centerpiece, are rejected. Instead, two alternative reform options are presented: the first involving a variation of the preferred dialogue model; the other involving a suite of alternative reforms similar to, but more far-reaching than, those recommended by the Brennan Committee. With Australia's Human Rights Framework set to be reviewed in 2014 (Commonwealth of Australia 2010, 3), such proposals remain relevant to the ongoing discussion that is set to continue over the coming years.

Original languageEnglish
Pages (from-to)1-36
Number of pages36
JournalAustralian Journal of Human Rights
Volume16
Issue number1
DOIs
Publication statusPublished - 1 Aug 2010
Externally publishedYes

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