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

18 Pages Posted: 12 Aug 2012 Last revised: 30 Aug 2012

See all articles by Suzanne Zhou

Suzanne Zhou

McCabe Centre for Law & Cancer; University of Cambridge - Trinity Hall; University of Melbourne

Date Written: May 25, 2012


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.

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

Suggested Citation

Zhou, Suzanne, Momcilovic v. the Queen: Implications for a Federal Human Rights Charter (May 25, 2012). Available at SSRN: or

Suzanne Zhou (Contact Author)

McCabe Centre for Law & Cancer ( email )

615 St Kilda Road
Melbourne, Victoria 3004

University of Cambridge - Trinity Hall ( email )

Trinity Lane
Cambridge, CB2 1TJ
United Kingdom

University of Melbourne ( email )

185 Pelham Street
Carlton, Victoria 3053

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