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November 1, 2022

THE AUSTRALIAN BILL OF RIGHTS DEBATE

THE AUSTRALIAN BILL OF RIGHTS DEBATE

Reading

Julie Debeljak, ‘The Fragile Foundations of Human Rights Protections: Why Australia Needs a Human Rights Instrument’ in Paula Gerber and Melissa Castan (eds) Critical Perspectives on Human Rights Law in Australia: Volume 1 (Thomson Reuters, 2021) 39, 62-78.

Momcilovic v The Queen [2011] HCA 34 para [75]-[97] (extract).

Helen Irving, ‘The High Court of Australia Kills Dialogue Model of Human Rights’, The Australian, 16 September 2011.

Questions

Discussion questions

1. Explain the distinction that Julie Debeljak draws between ‘monologue’ and ‘dialogue’ models of human rights protection. Which model does she favour for Australia?

2. In Momcilovic v The Queen (2011) 245 CLR 1, a majority of the High Court found that legislation modelled on the British Human Rights Act 1998 is constitutionally permissible at a State and Territory level but not at a federal level. Why did the High Court reach this conclusion?

3. Subsequent to the decision of the High Court in Momcilovic, what options remain for a federal Bill of Rights in Australia?

Exam revision question

Prepare a plan for how you would answer this essay question:

‘…there is a patchwork of human rights protection in Australia. The patchwork is fragmented and incomplete, and its inadequacies are felt most keenly by the marginalised and the vulnerable’ (Human Rights Consultation Committee Report (2009) 127).

To what extent do you agree with this statement? Give examples to illustrate your arguments.

END

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