The Charter and abortion

The Victorian Law Reform Commission today tabled its report on the decriminalisation of abortion, proposing three reform models. A conscience vote on whichever model the government chooses is expected in the Victorian Parliament before the end of the year. But what role will the Charter play?

The shorter answer is: none. The medium answer is:

48 Nothing in this Charter affects any law applicable to abortion or child destruction, whether before or after the commencement of Part 2.

But the long answer is: jeez, yet another example of bad drafting! Section 48 is yet another unique Victorian provision, the product of the dreaded meddlers who couldn’t leave the Consultation Committee’s draft well alone.

The first problem: what does s48 actually do? Here’s what the VLRC thinks it does:

The Charter, therefore, has no effect upon the law of abortion in Victoria, and the rights contained in the Charter are not applicable in abortion cases.

Well, the first bit’s gotta be right, though it isn’t very specific. The major provision of the Charter that ‘affects any law’ is the interpretation mandate. It’s clear enough that Charter s. 32 doesn’t apply to abortion and child destruction laws. However, the status of other Charter provisions that are about laws – the requirement of a statement of compatibility, SARC’s reporting function, the declaration power – is less clear, because none of them have any legal effect. Indeed, the Charter says this explicitly for the statements and declaration power. So, arguably, they aren’t affected by Charter s. 48. If the meddlers meant to exclude Charter ss. 28, 30 & 36, why didn’t they use the language of Charter s. 31(5), which provides that the Charter ‘has no application to’ provisions that are the subject of an override?

But I’m more dubious about the final part. Charter s. 48 says nothing about ‘cases’. It doesn’t use the language of Charter. s49(2), which says that the Charter doesn’t affect certain proceedings. Instead, it talks about laws. Abortion laws. Child destruction laws. Proceedings involve lots and lots of other laws: procedural laws, evidence laws, general substantive laws, the Charter’s rights. Why on earth should people, say, charged with the offence of abortion be denied the righ to a fair hearing? Or to the ban on retrospective penalties? Or double jeopardy? Or privacy? Or freedom from discrimiantion? That being said, Charter s. 48 refers broadly, albeit vaguely, to ‘any law applicable to’ abortion or child destruction, so who knows how far that will go? I’m betting that the meddlers have no idea. The EM, aside from simply restating Charter s. 48 verbatim, clarifies only that ‘any law’ includes both statutory and common law. This is a (unncessarily clumsy) reference to both the terms of s. 65 of the Crimes Act and the key Mehennnit decision (although the VLRC correctly states that Mehennit is an exercise in statutory interpretation, not common law analysis.)

And the VLRC’s complex recommendations on decriminalisation make the question of what is an abortion law very interesting. The last nine words of Charter s. 48 point to its continuing operation after decriminalisation (though, again, it’s hard to see why the meddlers didn’t specify that using the clearer language of Charter s. 49(1)). But decriminalisation can lead to abortion being regualted by multiple statutes, with both specific provisions and general ones. If abortion is left to be regulated by the general law on informed consent, then will the Charter cease to affect those laws. Ditto for the general law on medical treatment. Or the Health Act. Or fair trading. Or the Charter itself.

The real flaw here is the meddlers’ solution to the political problems caused by the intersection of human rights and abortion law, the cause of so much woe in the U.S. and elsewhere. The Consultation Committee recommended the ACTHRA expedient of providing that the right to life begins at birth, avoiding the need to work out if abortion ‘arbitrarily’ deprives a foetus of life. But this compromise was apparently unacceptable to the government, who instead took the ‘savings clause’ route in Charter s. 48. However, savings clauses are usually for current laws, not future ones. Who knows what the future will bring?:

  • A law permitting some people to be forced to have abortions?
  • A law requring all hospitals to provide abortions, regardless of their religious afiliation?
  • A law authorising sex-specific abortions? Or abortions based on genetic testing?
  • A law banning opponents of abortion from standing within 300m of an abortion clinic?
  • A law banning opponents of abortion from offering ‘pregnancy counselling’?
  • A law requiring parental consent for abortions? Or the father’s consent?
  • A law requiring people who have abortions to register them with the government?
  • A law banning minors from having an abortion? Or banning abortions of girls?
  • A law abolishing the privilege against self-incrimination for abortion?
  • A law retrospectively lifting the penalty for abortions?
  • A law introducing the death penalty for abortions?

All of these laws are rendered permanently immune from the Charter – at least the interpretation mandate – by Charter s. 48. Doesn’t seem like that good a compromise, does it?

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