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.This is a work-in-progress; feedback is welcome and may be sent to the author at the link provided by SSRN.
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