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The Bracks Government is proposing the enactment of a Charter of Rights for Victoria. It argues for a particular model similar to that used in the United Kingdom, New Zealand and most recently, the Australian Capital Territory. According to Attorney-General Rob Hulls a charter of rights for Victoria is “the best way that rights can be protected and it’s also about keeping governments honest when it comes to protection of human rights”. 

However,   I cannot agree more with Alan Anderson, a Melbourne lawyer, who says this plan for a Victorian bill of rights “is the latest step in a long-running campaign” by social engineers to confer executive and legislative powers to the judiciary. The intention of these advocates of bill of rights, as he properly says, “is the implementation by judicial fiat of a policy agenda that runs contrary to the beliefs of most Australians, giving left-wing judges power to condemn from the bench, or even overrule, the policy decisions of elected representatives”.

Many of the rights mentioned by the draft presented as a legislative  proposal by the Human Rights Consultation Committee (HRCC) cover a vast range of ‘group rights’. In its Part 2, Section 18, for instance, the draft states the potentially harmful and naturally divisive ‘right’ of cultural, religious,or linguistic communities to enjoy their culture, to declare and practice their religion, or to use their own language. Such group rights conflict with individual rights and liberties. They generate an excess of governmental interventionism, and, as a result, the diminishing of fundamental rights and liberties of the individual. As sociology professor Alvin J. Schmidt explains, “group rights that determine a person’s rights on the basis of belonging to a given ethnic or racial group, as presently advocated by multiculturalists and by affirmative action laws, nullify the rights of the individual. Group rights greatly reduce the freedom of the individual in that these rights stem only from the group; if he does not belong to the group, his rights are greatly curtailed”.

Moreover, history shows that the effective protection of human rights does not require any charter of rights so much as a ‘good’ constitutional framework (i.e.; separation of powers) underpinned by certain essential cultural factors. It is thereby far more dependent on a particular kind of culture based on democratic values which demand both citizens and governmental authorities to subject themselves to basic standards of truth and justice.

In certain societies even the enactment of a glossy bill  of rights has not avoided abuses of human rights provoked by the government. The governments of China, Cuba, Rwanda, Sudan – all of them notorious violators of human rights – have elaborated sophisticated charters of rights which, however, have failed to offer any real protection for the people of these unhappy nations. Actually, even the former Soviet Union under the tyrannical rule of Joseph Stalin had an impressive charter of rights.

In these days of moral and cultural relativism, the decline of Christian morality and culture in the Western world has removed important social restraints on individual behaviour. Perhaps the toughest sell today, notes Charles Colson, “is persuading people that they ought to govern their personal behavior for the sake of the public good”. A charter of rights, however, will surely contribute to this socially destructive culture of rights by not offering the balance between rights and responsibilities.

Another problem with a charter of rights is that it always gives to the judiciary the undemocratic power to determine the hierarchy of human rights and interests. To put this in simple terms, every bill of rights invariably results in the undemocratic usurpation of legislative functions by non-elected judges. However, when judges pass wrong decisions their rulings are extremely hard to be corrected due to the entrenchment of judicial precedents.

Those who push for a Victorian charter of rights may suggest that since this document is enacted by an elected legislature, with the support of the majority of citizens, then the judicial invalidation of statutes on the grounds of violating this charter would be perfectly democratic. Against this sort of simplistic argument we need just to say that if citizens decide to establish an elected dictatorship it does not follow from this that the  dictatorship is democratic. It just indicates that democracy can be extinguished by democratic means.

A Victorian charter of rights will certainly be used as a tool for the attainment of social agendas unable to attain majority approval. As law professor Gabriel Moens explains, “those who favour a bill of rights may delight in the vagueness of these documents, for they sometimes assume that its very ambiguity will enable them to achieve, through judicial decision, what they have been unable to achieve through Parliament”. In fact, the pro-homosexual ALSO Foundation reminds us:  “charter rights, framed in abstract and general language, have proven amenable to [sic] progressive interpretations urged by, amongst others, activists for gay, lesbian, bisexual, and transgender rights”.

It is highly suspicious that the very government that is manoeuvering to introduce a charter of rights enacted an infamous religious vilification law, which has curtailed in an unprecedented manner the most basic right to a truly democratic system of government, the right to freedom of speech. And yet, the report of the HRCC  even  mentions this draconian legislation as an example of protection to the right of religious freedom.

  As it is  going to contain numerous abstract concepts, such as the prohibition of ‘religious discrimination’ and ‘social discrimination’, the Victorian Charter of Rights, once it is enacted,  will limit even more the democratic freedoms of the citizen to the expression of opinions that are deemed acceptable only by a cultural elite. To conclude, disadvantages of a charter of rights for Victoria by far outweigh any alleged advantage from its enactment.