A Human Rights Act for Australia: A Transfer of Power to the High Court, or a More Democratic Form of Judicial Decision-Making?

56 Pages Posted: 15 Nov 2012 Last revised: 18 Nov 2012

See all articles by Emma Hoiberg

Emma Hoiberg

affiliation not provided to SSRN

Date Written: May 25, 2012

Abstract

Australia is the only Western democracy without some form of constitutional or legislative Bill of Rights. In 2008 the Australian Federal Government established the National Human Rights Consultation Committee, which recommended that Australia adopt a Human Rights Act similar to that in force in the United Kingdom.

A number of submissions received during the consultation argued that giving the High Court of Australia power to issue declarations of incompatibility would result in a ‘transfer of power’ to an unelected judiciary. This dissertation seeks to dispel that argument as unfounded: the High Court already makes decisions which operate to protect human rights, albeit under the guise of decisions regarding the Australian Constitution or the common law. To demonstrate this point, this dissertation takes the High Court decision in South Australia v Totani (2010) 242 CLR 1, which was decided according to the constitutional requirement of judicial independence, and demonstrates that it would have been decided the same way under the United Kingdom Human Rights Act 1998. Importantly however, a Human Rights Act would give the High Court less power than it currently holds under the Constitution.

That being established, this dissertation then seeks to shift the focus of the debate in Australia, from whether the High Court should have the power to make decisions regarding human rights, to why it would be better for this to occur under a Human Rights Act. Two reasons are posited in support of the latter proposition: first, a Human Rights Act would give the High Court greater democratic legitimacy, in giving it a specific legislative mandate to make decisions regarding human rights; and secondly, a Human Rights Act would result in a ‘culture of justification’ in Australia, bringing human rights to the forefront of government and public consciousness.

Keywords: Australian human rights, High Court of Australia, Human Rights Act

Suggested Citation

Hoiberg, Emma, A Human Rights Act for Australia: A Transfer of Power to the High Court, or a More Democratic Form of Judicial Decision-Making? (May 25, 2012). Oxford Student Legal Studies Paper 09/2012. Available at SSRN: https://ssrn.com/abstract=2172707 or http://dx.doi.org/10.2139/ssrn.2172707

Emma Hoiberg (Contact Author)

affiliation not provided to SSRN ( email )

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