An Australian statutory charter of human rights would be constitutionally valid, a round table held by the Australian Human Rights Commission (AHRC) has determined.
Doubts as to the constitutional validity of a national charter of human rights were raised this year by former High Court justice Michael McHugh. However, the round table, which included McHugh, has now put this issue to rest.
"The round table reached a unanimous agreement on a number of important issues, most importantly that a human rights act can be drafted in a way that is constitutionally valid," said AHRC president Cathy Branson QC, who also participated in the round table.
One of the features of the proposed charter is that it would require courts to interpret laws - as far as possible - consistently with the human rights principles set out in the charter. If the court was unable to do so, it could issue a "declaration of incompatibility", requiring Parliament to reconsider the law.
One of McHugh's primary concerns was that the issuing of these "declarations of incompatibility" might not constitute a valid exercise of judicial power, a requirement of Chapter III of the Constitution.
However, the round table concluded that this concern could be addressed by taking the courts out of the process of notifying Parliament of the inconsistency. Instead, an independent body - such as the Human Rights Commission - could keep watch on cases and notify Parliament, through the Attorney-General, if a court was unable to interpret legislation consistently with the statutory charter.
A national public consultation on how to best protect human rights in Australia - including consideration of a national statutory charter of human rights - was launched by the Federal Government in December last year. The independent committee charged with undertaking the consultation is due report to the Government by 31 August 2009, with submissions due by 15 June 2009.
- Zoe Lyon
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