A federal human rights act based on the dialogue model was recommended by the National Human Rights Committee in its report publicly released on Thursday 8 October.
Nearly 28,000 submissions were in support of a human rights act being introduced, with the recommended model based on existing frameworks operating in the UK, New Zealand, Victoria and the ACT.
Ed Santow, director of the Charter of Human Rights Project at the Gilbert + Tobin Centre of Public Law, told Lawyers Weekly he was pleased with the recommended model.
"Parliament has the final say on questions of human rights, so if a law is in breach of particular human rights [then it is] incompatible with [the act]. Parliament will be notified of that and it will have the option of keeping the law as is or amending the law, so that is a really important feature of the dialogue model," he said.
The committee, chaired by Frank Brennan, recommended that a number of additional civil and political rights be included in the act, including freedom from forced work, right to privacy and reputation, freedom of expression, right to peaceful assembly and the right to marry and found a family.
Also recommended was the inclusion of economic and social rights in the act, but Santow was critical of the reach of the rights under the proposal.
"They said that [economic and social] rights should not be judiciable, that is, that they should not be judicially enforceable. Now I think it is an encouraging sign that they recommend the inclusion of economic, social and cultural (ESC) rights but I don't think they went far enough," he said.
"Our international laws on ESC rights are indivisible from other rights such as civil and political rights and they must be given full protection - so I think the Brennan committee could have gone further in legislating to protect ESC rights."
Santow, however, also believed that the model adopted would not result in a huge increase in lawyers' fees.
"The main gain in this kind of human rights act model is not in the courts, it is designed to prevent human rights abuses from occurring before they end up in high-level litigation - say, in the Federal Court or the High Court. So it is unlikely that it will lead to either a large increase in lawyers' work in this area, or, for that matter, that it will lead to an increase in litigation - and that is borne out very clearly from statistics in the UK."
The Australian Government is considering its response to the report.
- Sarah Sharples