The Australian Christian Lobby will be making a submission into the review of the Victorian Charter of Rights. The ACL was concerned about the introduction of the Charter four years ago. Here is a brief summary of why the ACL is concerned about a Charter of Rights and will be basing its submission on these points.

Charters of rights potentially transfer authority from parliamentarians to judges

  • Father Frank Brennan, Chair of National Human Rights Consultation: “I think there is no doubt the bill of rights of any form does transfer some power from politicians to judges.”[1]

  • Hon Anand Satyanand Governor-General of New Zealand regarding the NZ charter of rights: “But in many cases, the Court has forced major changes in public policy.”[2]

  • Policy decisions should be made by elected politicians who are accountable to the people.

  • Parliament is the right forum for policy debate because it is representative and democratic.

  • Judges are unelected and work within a closed forum with limited opportunity for debate.

Charters of rights politicise the judiciary and undermine parliamentary sovereignty

  • Judicial independence is dependent upon the appointment of judges based on their competency in the law not their ideological sympathy with the government of the day.

  • The enlarged role in public policy determination that a charter of rights provides judges makes ideological appointments more of an imperative for governments.

  • The role of parliament is to enact legislation and the role of the judiciary is to interpret that legislation, but a charter of rights blurs this separation of powers.

  • The Charter empowers judges to declare laws ‘incompatible’ via their own interpretation of human rights.

  • A charter lists abstract rights leading to uncertainty and inconsistency, as legislation no longer has final authority and is subject to a Court’s opinion on whether it is rights-compatible.

Charters of rights undermine important freedoms, as the Victorian experience attests

  • Within months of the enactment of the Victorian charter, the Government initiated an inquiry to test against the new charter, essential freedoms, enumerated as ‘exemptions’ in the Equal Opportunity Act that allow faith-based organisations to employ like-minded staff.

  • An ‘Options Paper’, written by a prominent legal expert, argued that religious freedom only applied to ‘core’ or ‘private’ aspects of faith, contrary to international human rights instruments[3] – of course, Christian faith has never been a purely private matter but is manifested in many public ways.

  • The new Victorian Equal Opportunity Act only allows Christian schools and service-providers to discriminate in favour of hiring like-minded staff ‘when conformity with the doctrines, beliefs or principles of the religion is an inherent requirement of the particular position’.[4]

  • The Victorian Equal Opportunity and Human Rights Commission says that it will determine a position’s inherent requirements, not the employing organisation,[5] stripping Christian bodies of this right.

  • Despite the charter, the Abortion Law Reform Act 2008 obliges Victorian doctors with a conscientious objection to abortion to refer a patient to an abortion-provider, in conflict with their right (under ICCPR Article 18) to freedom of thought, conscience and religion.

Charters of rights encourages rights assertion rather than rights protection

  • A charter of rights empowers activists to bypass democratic processes and public opinion by an appeal to ‘human rights’ in the courts.

  • The concept of human rights has been politicised, and opponents of core Christian values are using human rights language and legislation to agitate for damaging social reforms – a ‘right to die’, a ‘right to abortion’, a ‘right to same-sex marriage’ etc.

[1] Brennan, F. (2008, December 11). Quoted in ‘Brennan considers the balance of human rights’. ABC, AM.

[2] Speech by the Hon Anand Satyanand on the History and Role of the Court of Appeal, Government House Wellington, 15 Feb 2008.

[3] See Article 18 of the International Covenant on Civil and Political Rights

[4] S. 82(3)(a) and s. 83(3)(a) of the Equal Opportunity Act 2010

[5] (2009, September 27), ‘Church can reject gays, single mums’, The Age,