Brennan (and Hulls?) on abortion

Frank Brennan writes on Charter s. 48 in Eureka Street. Or does he?:

If Victoria is to legislate abortion on demand, there is a need to consider whether all health professionals ought to be conscripted into such a regime. Has the legislature got the balance right here? Presumably the legislators assume the majority of health professionals will have no ethical or moral objection. The issue is whether the minority of health professionals who do have such objections should be forced to act against their conscience.

One would have thought that the Victorian Parliament, armed with its freshly minted Charter of Rights and Freedoms [sic - sigh, that's Canada's upbeat name. Victoria's isn't so cheery!],  would have the appropriate machinery at hand to find that balance. After all, the Charter guarantees freedom of thought, conscience, religion and belief. The Charter does permit parliament to override prescribed freedoms in rare circumstances. However Professor George Williams and his fellow proponents of the Charter were ’strongly of the view that it would be inappropriate to use the override clause to sanction a breach of important rights such as freedom of conscience, thought and religion’. They did not tell us that such rights could be overridden without need for an override or even without need for parliament to consider the impact of proposed legislation when those rights could ‘interfere’ with the right to abortion on demand….

Section 48 provides that ‘Nothing in this Charter affects any law applicable to abortion or child destruction’. It was included in the Charter to accommodate the concerns of Professor Williams and his colleagues that the Charter not purport to resolve the question of when life begins for the purposes of defining the right to life. The Williams committee stressed that such a provision was ‘not intended to make a statement on when life begins. That question has significant moral and scientific aspects and is not a question that the Charter seeks to answer. Indeed, the key reason for including this clause is to ensure that an outcome is not imposed by the Charter, but is left to political debate and individual judgement.’ They made what must now be seen by their political masters to be a remarkably misconceived observation: ‘In coming to this view, we emphasise that the Charter will expressly preserve all other rights, including any rights that the law gives to the unborn child in other statutes and the common law.’

While Brennan is quite correct in characterising Charter s. 48 as an unlimited form of override for laws like clause 8 of the Abortion Law Reform Bill, he’s wrong to blame George Williams and his Human Rights Constultation Committee.

Charter s. 48 did not appear in the Committee’s draft bill. Instead, they followed the ACT approach of limiting the right to life (but no other rights) to the born. However, the unnamed folks who I refer to in this blog as the ‘meddlers’ – the ones who changed the Committee’s draft before it went to Parliament,  invariably for the worse – deleted the limitation on the right to life and instead inserted the risible Charter s. 48. The current one-sided rights argument being won by the pro-life movement may be what is now being reaped from the meddlers’ sowing.

Rob Hulls’s surprise decision to vote against the bill may provide a clue as to who the meddler was on this occasion. He hasn’t revealed the reasons for his conscience vote, with Brumby labelling it a private matter. I’m dubious about that claim: conscience votes are arguably the only reason for voters to pay attention to who they are electing, rather than the party he or she belongs to. Not knowing what Hulls’s objection to the bill was makes it impossible to for his electors to guess how he may vote if the issue or a related one returns to parliament in the future. But maybe the mysterious appearance of Charter s. 48 in the Charter bill, combined with a dropping of the Committee’s gloss on the right to life, shows what Hulls was worried about.

Was Hulls unhappy with denying a key human right to the unborn? This theory gets support (of sorts) from the parliamentary debate on the bill.

An Un-Chartered conviction

A development I have long feared has come to pass:  a guilty verdict in a Victorian criminal case has been upheld despite a Charter argument that might have led to an acquittal. This year, most criminal cases where the Charter has been considered have been interlocutory or collateral matters: bail, DNA sampling, proceeds of crime, trial process, etc. The one exception was DPP v Zierk [2008] VSC 184, where the Charter was held not to apply (and Warren CJ, of course, made it clear that she’d blow it off anyway even if it had) but the defendant was nevertheless acquitted on ordinary statutory interpretation grounds.

Not so in Howe & Ors v Harvey; DPP v Tinkler & Ors [2008] VSCA 181, where the Court of Appeal upheld five findings by the Magistrates Court of breaches of s26 of the (since repealed) Children and Young Persons Act 1989, which provided:

26(1) A person must not publish or cause to be published—

(a) except with the permission of the President, a report of a proceeding in the Court or of a proceeding in any other court arising out of a proceeding in the Court that contains any particulars likely to lead to the identification of— (i) the particular venue of the Children’s Court, other than the Koori Court (Criminal Division) and the Neighbourhood Justice Division, in which the proceeding was heard; or (ii) a child or other party to the proceeding; or (iii) a witness in the proceeding; or

(b) except with the permission of the President, a picture as being or including a picture of a child or other party to, or a witness in, a proceeding referred to in paragraph (a); or

(c) except with the permission of the Secretary granted in special circumstances in relation to a child who is the subject of a custody to Secretary order or a guardianship to Secretary order, any matter that contains any particulars likely to lead to the identification of a child as being the subject of an order made by the Court.

Penalty:

(a) In the case of a body corporate – 500 penalty units.

(b) In any other case – 100 penalty units or imprisonment for 2 years…

The case concerned stories (arising in a chain of events recounted by Media Watch here) in the Herald Sun, Today Tonight and Sunrise to the effect that a 14-year old had ‘won a divorce from his mother… on the grounds of irreconcilable differences.’, accompanied by the usual blather about crazy authorities, spoilt brats and parents’ rights. The child had obtained a protection order from the Children’s Court under the then s84 of the CYPA (now s274 of the Children, Young Persons and Families Act 2005.)

Crucially, the various reports gave the child’s name and showed his photo, so it might seem a no-brainer that they breached s26. However, the Court of Appeal expressly ruled that s26(1)(a), at least, was ambiguous in one very relevant respect: does the ban only cover reports that identify the proceedings as Children’s (or related) Court proceedings, or does it extend to the situation here, where the reports only mentioned the outcome of the process and either didn’t mention the Children’s Court or buried it in a reference to ‘the authorities’.? The defendants pointed to numerous decisions elsewhere in Australia and overseas that read similar (but not identical) provisions narrowly, e.g. confining them to narrative accounts of proceedings or to photos while a proceeding was ongoing or to revelations that would have been understood by an ordinary member of the public. In each case, a narrower reading could arguably have meant that the various reports weren’t in breach of the section and, therefore, that the guilty verdicts were wrong.

It might also be thought that the defendants may gain little help from the Charter, because their rights are not the only ones at stake. Charter free expression is balanced against others’ rights, both internally and in two other express rights:

15(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria…

(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary- (a) to respect the rights and reputation of other persons…

17(2) Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

24(3) All judgments or decisions made by a court or tribunal in a criminal or civil proceeding must be made public unless the best interests of a child otherwise requires or a law other than this Charter otherwise permits.

However, the defendants drew on powerful arguments from the case-law to the effect that a narrow reading of s26 is the appropriate way to strike the balance.

Notably, in Clayton v Clayton [2006] EWCA Civ 878, the UK Court of Appeal gave a narrow reading to a provision that was similar to s26(1)(b) (confining it to ongoing procedures), on three grounds. First, that a decision by the relevant court on a case-by-case basis (available under inherent jurisdiction) was preferable to a blanket decision. (Victoria’s Children’s Court has the power to suppress individual proceedings, whether or not s26 applies, derived from the powers of the Magistrates Court.) Second, that a blanket, open-ended and ambiguous ban would fail the ‘lawful restriction’ test for limits on human rights, while a specific ban issued by the court in question would make it clear to everyone what publications were permitted.  Third, that the penal context – note that s26 carries a potential prison sentence – meant that ambiguities should be resolved in favour of a narrower reading of a criminal provision. These concerns are all familiar parts of human rights law that are routinely applied to resolve difficult conflicts between competing rights and interests and, indeed, the UK case was expressly concerned with the balance between free speech and children’s privacy rights.

So, actually, it’s surely a no-brainer that, at least in the resolution of statutory interpretation questions that the Victorian Court of Appeal considered ambiguous, close attention should be paid to cases like Clayton v Clayton pursuant to Charter s. 32:

32(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

Alas, no:

Clayton can be distinguished on the basis that the Court of Appeal was required to interpret the legislation consistently with the European Convention… In the instant case, it was not contended in oral submissions that the Charter of Human Rights and Responsibilities Act 2006 should be applied in interpreting s 26(1), so the same considerations do not apply.

Oh dear.

Do hospitals have rights?

The Charter has made the front page of the Age twice in two days, both curiously on the issue of abortion, despite Charter s. 48, which provides that nothing in the Charter ‘affects any law applicable to abortion or child destruction.’ While the Minister took the view that Charter s. 48 removes any obligation to provide a statement of compatibility (and hence none was provided), SARC questioned whether Charter s.48 has any impact on the debate over bills, which aren’t laws and aren’t affected by the Charter.

Possibly to the surprise of some, the Charter has been raised almost exclusively by the pro-life side of the debate. They’ve picked their issue cleverly, focusing not on the abstract debate about whether or not foetuses have human rights but instead on Charter s. 14:

14(1) Every person has the right to freedom of thought, conscience, religion and belief, including- (a) the freedom to have or to adopt a religion or belief of his or her choice; and (b) the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.

(2) A person must not be coerced or restrained in a way that limits his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.

Catholic Archbishop Denis Hart wrote, in a ‘pastoral letter’:

The Bill is an unprecedented attack on the freedom to hold and exercise fundamental religious beliefs. It makes a mockery of the Victorian Charter of Human Rights and the Equal Opportunity Act in that it requires health professionals with a conscientious objection to abortion to refer patients seeking an abortion to other health professionals who do not have such objections. It also requires health professionals with a conscientious objection to abortion to perform an abortion in whatever is deemed an emergency. The Bill is clearly intended to require Catholic hospitals to permit the referral of women for abortions…

Catholic hospitals and the large number of Victorians they serve are also in a vulnerable position. Catholic hospitals will not perform abortions and will not provide referrals for the purpose of abortion. If this provision is passed it will be an outrageous attack on our service to the community and contrary to Catholic ethical codes. It will leave Catholic hospitals and doctors with a conscientious objection to abortion in a position where they will be acting contrary to the law if they act in accordance with their deeply held moral convictions. This Bill poses a real threat to the continued existence of Catholic hospitals. Under these circumstances, it is difficult to foresee how Catholic hospitals could continue to operate maternity or emergency departments in this state in their current form.

In an op-ed in today’s Age, Liberty Victoria Vice-President Anne O’Rourke responds to this Charter claim:

The Victorian Charter of Human Rights and Responsibilities does indeed guarantee a right to freedom of thought, conscience, religion and belief, as Archbishop Hart points out. There are two errors in his claim, however. The first is that only human beings, not hospitals or related entities, have human rights

O’Rourke here relies on Charter s. 6(1), which provides that ‘[o]nly persons have human rights’. This provision reflects traditional human rights advocates’ dislike of corporations. Indeed, the Victorian Law Reform Commission, whose recommendations are responsible for the Abortion Law Reform Bill’s ‘conscience clause’, expressly adopted this prejudice as a reason to reject the approach taken in Western Australia of providing every ‘person, hospital, health institution, other institution or service’ with a conscience clause. The VLRC wrote:

As freedom of conscience is generally understood to be held by individuals, the conscience
provision should not extend to corporations. This is consistent with existing conscience
provisions in other Victorian laws. The danger in extending the provision to institutions is that it may establish a precedent of corporations holding interests that could be categorised as human rights. This could lead to perverse outcomes.

What are those ‘perverse outcomes’? A footnote explains:

See, eg, RJR-MacDonald Inc v Canada (Attorney General) [1995] 3 SCR 199. Free speech extends to commercial speech—tobacco advertising laws contravened freedom of expression. There is no reason to extend the provision to organisations because the new law of abortion will not establish a positive duty to perform abortions.

Yes, that old furphy, the supposedly controversial extension of freedom of expression to commercial – not corporate – speech. Not only was the Supreme Court of Canada’s decision in that case entirely correct – tobacco sellers were barred from saying that required health warnings were from the government, not them; and the Canadian government declined to provide any evidence for why less broad bans would fail to achieve the desired effect; remedying both defects led to the Supreme Court upholding the new law – but it is, at best, an argument for restritcing free expression, not other rights. The real gripe of Australian human rights advocates with the Canadian case, and corporations in general, isn’t any analysis of the decision – there’s NEVER anything more than a footnote – but anger that the Canadian government’s shoddy lawyering gave the anti-Charter mob a free kick. While the rejection of corporate human rights is sometimes belatedly justified by their supposed power (and hence the potential for them to ‘abuse’ human rights), that objection is scarcely applicable to all non-human entities. Since when have hospitals and health providers been deep pocketed abusers of legal rights?

O’Rourke’s reliance on the limitation of human rights to humans is transparently specious in this case. No-one’s claiming that the hospitals (e.g. the building?) have a freedom of conscience. Rather, Hart’s claim is made on behalf of the many human beings with a stake in such hospitals, including donors, managers, employees, patients and Catholics in general. Indeed, Charter s. 14(1)(b) expressly refers to people demonstrating their believes ‘as part of a community’. O’Rourke (like the VLRC) does the pro-choice side an enormous disservice by relying on a miserly technical knockout, especially one whose flaws are transparent to lay people. Liberty Victoria ought to disown this risible use of Charter s. 6(1).

O’Rourke is on much stronger ground in relation to her second argument, based on Charter s. 7(2):