Models for a Charter of Human Rights

The biggest source of debate, or disagreement, over a Charter of Human Rights in Australia relates to the role that the High Court of Australia, and other federal and State courts, should play in the interpretation and enforcement of human rights. 

There are three broad possibilities to choose from in this context:

  1. the status quo model, according to which courts have only a narrow role to play in the enforcement of human rights, largely through the application of common law principles of statutory interpretation ;
  2. a ‘dialogic’ or ‘weak form’ model, according to which courts and parliaments share responsibility for the interpretation and enforcement of human rights; and
  3. a strong-form model of judicial protection, according to which the courts would have broad power to invalidate legislation for inconsistency with a Charter of Human Rights.

The second model could be adopted either by way of ordinary legislation passed by the Commonwealth Parliament, or via constitutional change approved at a referendum by the Australian electorate, or a combination of both.

The third model would almost certainly require some form of formal constitutional amendment, approved by the electorate in accordance with s. 128 of the Constitution.

While Australia has significant experience with the third model in the context of federal constitutional guarantees, most commentators believe that it would be extremely difficult for a referendum proposing formal constitutional change in this area to succeed. The difficulty in securing such a constitutional amendment contributes to a focus, on the part of proponents of a Charter of Human Rights, on the second model of judicial rights protection. For many, there are also important reasons of principle that favour the second over the third rights model, given the value of ongoing legislative involvement in the definition of rights.

The debate over a Charter of Human Rights in Australia, therefore, is largely between those who favour the status quo, and those who favour some form of dialogic, or weak-form model of judicial rights protection.

To a lesser degree, there is also debate among those who support the dialogic model over what form of Charter of Human Rights is most likely to promote true dialogue, or weak-form judicial review. 

The most important issue in this context is whether Australian courts should be given the power to invalidate legislation for inconsistency with a Charter of Human Rights (based on, for example, the Canadian experience in the Canadian Bill of Rights Act, c44, 1960), or whether their role should be limited to making some form of declaration of inconsistency or incompatibility that lacks legal effect (based on, for example, the rights charters adopted in New Zealand, the United Kingdom, the ACT and Victoria). In order to preserve legislative involvement, most commentators agree that the Parliament should have broad legal power to override decisions of the Court which do not command democratic support, by virtue of either an express power of override, or an implied power of repeal, or both.

the High Court of Australia, however, recently suggestedthat there is limited scope to adopt the ’declaration of incompatibility’ model at a national level in Australia (see Momcilovic). A majority of the Court held (by 4-3) that State courts may issue declarations of incompatibility / inconsistent interpretation under relevant State charters. However, a different majority also held (by 5-2) that it was unconstitutional for federal courts or any State court exercising Commonwealth judicial power under Chapter III of the Australian Constitution  to issue a declaration of incompatibility / inconsistent interpretation. It was also held that the High Court itself could not hear appeals from the grant of such remedies.  

For further information on models for a Charter of Human Rights, see: