Momcilovic v. the Queen: Implications for a Federal Human Rights Charter

Abstract

This paper examines the implications of the High Court's recent decision in Momcilovic v. The Queen for the adoption of a dialogue-based human rights charter along the lines of that suggested by the National Human Rights Consultation. It argues that because of the cautious drafting of the NHRC model, Momcilovic’s impact will be modest, and that the majority of the NHRC remains constitutionally feasible. On the other hand, the limited judicial role envisaged in Momcilovic indicates that Australian courts are unlikely to engage in the judicial activism often cited in opposition to a charter. Momcilovic may therefore in fact strengthen the political case for a federal dialogue-based human rights charter, even if it legally constrains some of its key features.

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Keywords: National Human Rights Consultation, Momcilovic, federal human rights charter, Charter of Human Rights and Responsibilities Act, judicial power