Yesterday, the Australian government released the Report of the National Human Rights Consultation Committee, on whether Australia should make changes to its current system of human rights protection. See http://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/Report_NationalHumanRightsConsultationReportDownloads
The Report contains 31 distinct recommendations for change in this area – some of which are clearly quite minimalist (e.g. recommendations about the desirability of increasing education about human rights and a federal government “rights audit). Other recommendations, such as the recommendation that the government adopt a UK-style model of rights charter (what the Committee calls a “dialogue” model) also purport to be minimalist in flavor but have the potential to have a profound effect on how the Australian High Court approaches the interpretation of statutes, and therefore also on the true capacity for Australian parliaments to engage in dialogue with the High Court (see further my article to this effect, forthcoming in the Federal Law Review). Certain ancillary recommendations the Committee makes in this context, such as the recommendation that only the High Court should have the power to issue declaratory remedies under such a charter (recommendation 29), also seem likely to worsen, rather than mitigate, this danger of substantive dialogic failure. The Report itself also fails almost entirely to acknowledge these dangers.
Given the target audience of the Report (a somewhat skeptical cabinet and general public), it is, of course, understandable that the primary focus of the Report is on making the case for a rights charter – by arguing, for example, that such a charter has the capacity to improve government decision-making, Australia’s international standing and promote a stronger “culture of rights”. It is nonetheless disappointing, given the length of the Report, that the Committee did not find space to address this kind of concern about a UK rights model. They seem to assume that the only real objection to such a model is that it may do too little to entrench (judicial interpretations of) human rights, rather than too much (see e.g. Report, 14.1); or at a minimum that by labeling their model “dialogic”, they can avoid this latter result. It is not just the American in me which doubts this …. There is a growing literature in the UK, Canada and Australia, as well as the U.S., which shows that as an ideal constitutional dialogue is not only highly contested, but also difficult to achieve.