Those who feel a Charter would fail the Christian community point to Victoria’s Abortion Law Reform Act (2008) as evidence that while Charters claim to protect religious views, they don’t in practice. It is said that the amended law – specifically clause 8 – forces Christian doctors to go against their religious conscience. The Victorian Government disputes this claim. If, however, we assume that the Law breaches religious conscience rights, what happened with Victoria’s Charter? It states in section 14 that everyone “has the right to freedom of thought, conscience, religion and belief”.
The Abortion bill should have been reviewed by the Charter, in accordance with the requirement that all bills tabled in Parliament have a statement of compatibility accompanying them (s 28). At that point the provisions in s 14 of the Charter and elsewhere would have injected a new dynamic into Parliamentary debate – including the pertinent question of how compatible the proposed legislation was with the Government’s own Charter of Rights. But the Statement of Compatibility did not take place. Why?
In a second reading speech the Minister stated:
“In accordance with section 48 of the Charter of Human Rights and Responsibilities, a statement of compatibility for the Abortion Law Reform Bill 2008 is not required. The effect of section 48 is that none of the provisions of the charter affect the bill. This includes the requirement under section 28 of the charter to prepare and table a compatibility statement and the obligation under section 32 of the charter to interpret statutory provisions compatibility with human rights under the charter. I move that this Bill be now read a second time.”
What is section 48? It is a special clause (or “savings provision”) – unlike any other in comparable Charters globally. It states:
“Nothing in this Charter affects any law applicable to abortion or child destruction…”
Some Christian leaders declared that the special exclusion of the Charter from abortion is evidence of the ’secularity’ of Charters. In public hearings for the National Consultation the Australian Christian Lobby declared:
“From a faith perspective there is for me a real crisis of confidence in an instrument [a Charter of Rights] which purports to protect human rights and yet in both the act and, Victorian examples, given as possible models by charter proponents, the act explicitly excludes the right to life of a child before birth…” (July 2009)
What is not acknowledged in the above speech, nor in comments by many others in the church, is the role of the Catholic Church in s 48. The clause was the product of negotiations between the Victorian Government and the Catholic Church over concerns that a Charter’s potential effects on abortion legislation. The Church wanted to exclude the Charter from having effect in regard to abortion. Attorney-General, Rob Hulls, noted this in an interview with the ABC on 23 September, 2008:
“It has to be remembered that abortion was specifically precluded from the charter, that was actually at a request after discussions with the Catholic Church”
So it was not ’secularists’ who led to the creation of this clause. Despite the central role of s 48 in sidelining the Charter from its normal requirement to scrutinise legislation, church commentary has consistently omitted any reference to it. This is misleading Christians, who deserve to know the full story about the Charter.
Whether it was correct to use s 48 to avoid a compatibility statement is disputed. The Victorian Government’s Scrutiny of Acts and Regulations Committee (SARC) noted problems with employing s 48 as a reason for not tabling a Statement of Compatibility. It sought a written explanation as to why such a Statement should not be tabled, particularly in light of questions it had about the compatibility of the Bill (including clause 8) with the rights in the Charter, for instance:
“The Committee refers for Parliament’s consideration the question whether the provisions of the Bill constitute an undue trespass to rights or freedoms within the meaning of the Act.” (Alert Digest No. 11 of 2008)
Critics of the bill may have wanted a much clearer answer about the imposition to freedom of conscience potentially raised in clause 8. However, post WW2 bills of rights tend not to be overly detailed and specific in order to give room for local legislatures to do fine interpretation on, for instance, the point at which human life begins. Bills of Rights are often criticised for this, for being too general, however when very specific rights are defined, the ramifications can be problematic. A salutary example is the US’s Second Amendment on the right of people to bear arms (carry weapons), which was adopted in 1791, and is often seen as counter-productive in today’s society. Hence, human rights instruments tend to defer to legislature to determine the specific detail of at what point, for instance, it is appropriate to allow termination of the unborn. Does this imply that a Charter of Rights has no role to play in abortion debates? Not at all.
Even strong opponents of a Charter saw the potential benefits of Victoria’s Charter. For instance, Professor Greg Craven and Timonth Ginnane believed the Charter could perform a powerful review function:
“As soon as this is appreciated, the rights of the Charter line up to do battle with this repressive [abortion] legislation… Inconsistency between the Abortion Bill and the Charter will not be enough to make these repulsive provisions illegal. But it will allow a judge to declare these impositions fundamentally inconsistent with Victoria’s human rights regime, adopted less than two years ago.” (The Australian, October 6, 2008)
There was a clear problem (in their view) balancing the Charter’s provisions in s 14 with the Bill. They also saw that the use of s 48 had meant that Parliament could “ignore” the Charter. However, they pointed out another step of review was available under a Charter – through the courts. This is really what Charters are designed to do in relation to legislation – create additional check and balance in the system (hence the existing Australian versions are called “dialogue” models, as they encourage the different arms of government to reference each other).
Despite these potential benefits, Professor Craven and others staunchly opposed a federal Charter. The Catholic Archbishop of Sydney, Cardinal George Pell, opposed a Charter in any form whatsoever. His view was that the electorate would hold the Government accountable for laws which fail human rights. In a statement on the Archdiocese website he wrote:
“I fear a charter could be used or abused to limit all sorts of freedom, and religious freedom. Already in Victoria legislation is attempting to coerce prolife doctors to cooperate in abortions. However that government will answer for this in the next and subsequent elections.” (“Human Rights” 18 Oct, 2009)
But how feasible is it that clause 8 of the abortion bill will become an electoral decider? In 2007 the Australian National University’s Australian Election Study released findings on abortion and electoral success. It found that 77% of winning candidates in federal elections were pro-abortion. Moreover, 61% of the electorate favoured “readily obtainable” abortion versus 35% who wanted abortion restricted to “special circumstances” and only 4% who wished the practice banned. The older age profile of those against suggests that support for more lax abortion laws will continue to rise (only those in the 75+ age group in 2007 opposed abortion by a majority). So, one wonders what likelihood there is that the Victorian electorate will make more restrictive abortion laws an electoral liability for the Government? Yet, ballot box accountability was claimed by many church leaders as the best way to properly protect rights.
The Abortion Reform Act is not an example of the Charter letting Christians down. At one level it is a cautionary tale about the potentially negative effects of relying on blanket exclusion clauses, which in this case came from political negotiations with the Church. The true lesson of the abortion debate is not that Charters fail religious rights. It is that we need clear statements about rights which are empowered to promote and protect us, rather than pure and simple reliance upon politicians.