The Charter vs. Charter s. 48

For obvious reasons, Charter s. 48 – the Charter’s savings provision for abortion and child destruction laws – is very much on my mind. Beyond bland quoting of published views, I won’t be commenting here on exactly how Charter s. 48 interacts with the Abortion Law Refom Bill 2008.

But there’s one Victorian law about abortion that the Bill leaves untouched. It’s this one:

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

So, here’s a puzzle: does the Charter apply to Charter s. 48? In particular, could someone seek a declaration of inconsistent interpretation about Charter s. 48?

The phrase ‘law applicable to abortion or child destruction’ appears to cover Charter s. 48 itself. That would seem to imply that the Charter (including Charter s. 36, the declaration section) doesn’t affect Charter s. 48. But the problem is that the phrase ‘in this Charter’ surely also covers Charter s. 48, which is obviously in the Charter. That means that, by the terms of Charter s. 48, Charter s. 48 is ‘saved’ from… Charter s.48. And that means that the exemption of effects of the Charter (whatever they are) from abortion laws doesn’t extend to Charter s. 48. And that means that the Charter (including Charter s. 36) do affect Charter s. 48. But so does Charter s. 48. Which means that the Charter doesn’t affect Charter s. 48. Which means that Charter s. 48 doesn’t affect Charter s. 48. Which means that the Charter does affect Charter s. 48….

And so on. In short, Charter s. 48 basically has the following form: “This Act doesn’t apply to this section.” The dreaded self-referential law! Indeed, it’s a self-contradicting law. That’s the worst sort!! Perhaps my  double degree in theoretical maths and law will be useful at last. If only I remembered any of the maths! What is the set of all sets that don’t include themselves? (I always got that one wrong in the exam!) And where’s my copy of Gödel Escher Bach?

Um, maybe it’s best if Charter s. 48 isn‘t a law applicable to abortion or child destruction’. For example, I guess you could argue that Charter s. 48 is really a law applicable to laws applicable to abortion or child destruction, which isn’t the same thing as a law applicable to abortion, etc. So, Charter s. 48 wouldn’t be self-referential anymore. That’d be a relief! Or would it?

If Charter s. 48 is subject to the Charter’s operational provisions, then that may undermine the whole point of…. Charter s. 48. According to Hulls’s 2R speech, that point is as follows:

[A] clause is included to put beyond doubt that nothing in the charter affects the law in relation to abortion or the related offence of child destruction. The government is mindful of the range of strong community views on this issue and has never intended the charter, which is aimed at enshrining the generally accepted core civil and political rights, to be used as a vehicle to attempt to change the law in relation to abortion.

If Charter s. 48 doesn’t apply to Charter s. 48, then that means that opponents of abortion could ask a court to issue a declaration of inconsistent interpretation about Charter s. 48! The details of that argument don’t really matter (but perhaps a claim that Charter s. 48, by exempting abortion laws, denies protection to kids or equal protection of the law or protection to families, e.g. fathers, the said protection being the protection offered by the Charter’s operative provisions. Even if these arguments have no legs, the point is that Charter s. 48 won’t be a complete answer to them. And that, of course, means that Charter s. 48 has failed to achieve its purpose, which is to knock out Charter arguments about abortion laws from the get go.

Uh oh. Perhaps the Victorian parliament had better pass a Charter s. 31 override about Charter s. 48. But then maybe abortion opponents could seek a declaration about Charter s. 31. So, maybe the override should be extended to cover Charter s. 31 too. But will that work?:

31(6) If an override declaration is made in respect of a statutory provision, then to the extent of the declaration this Charter has no application to that provision.

Uh oh. Surely Charter s. 31(6) is in ‘this Charter’ and Charter s. 31(6) would be ‘that provision’. Which means that the override would have no application to Charter s. 31(6). But that means that Charter s. 31(6) wouldn’t be subject to Charter s. 31(6). So the override would apply… etc….[clunk]

One solution to this mess that now occurs to me is to interpret the term ‘in this Charter’ in Charter s. 48 as not including Charter s. 48 (and ‘this Charter’ in Charter s. 31(6) as not including Charter s. 31(6)). The form of the sections would then be ‘This Act, apart from this section, does not affect [or apply to] this section.’  Not elegant, but presumably achieving what was intended, which was to exempt abortion laws from all provisions of the Charter other than Charter s. 48 (and to prevent back-door attacks on the override too.) At least, I think that’s what it’d do. It’s kind of like Groucho Marx saying he’d never join a club that would have him as a member. My head hurts.

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