The Commission’s proposed model has most
of the attributes of the dialogue model, with
one key departure – the Commission is not
proposing a formal power enabling courts to
notify the Parliament about laws that breach
human rights, and is instead proposing an
alternative informal notification process. This is
due to constitutional concerns that have been
raised in relation to such a formal power in
Australia, discussed in chapter 10. As such, the
model may not be viewed as a ‘pure’ dialogue
model, although it shares other key features of
the model.4
Some Free & Equal stakeholders expressed
support for a constitutionally entrenched Bill
of Rights in preference to a legislative model.5
However, the Commission considers that a
legislative model is the most pragmatic and
compatible model with Australia’s government
structure and political norms.
A constitutional model provides stronger, less
easily reversible human rights protections.
However comparable legislative models have
successfully embedded human rights into
the fabric of parliamentary democracies, and
none have been repealed once introduced.
Further, the Commission notes that the passage
of a legislative model does not exclude the
entrenchment of those rights in the Australian
Constitution at a future date.
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