Un-Chartered abortion

Yesterday was a landmark day in Australian abortion law, with a government bill going before Parliament for the decriminalisation of abortion. However, it is also a landmark in Charter practice, as this is the first bill since 1/1/7 that goes to parliament without a statement of compatibility. The reason is this provision:

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

In the Charter’s Second Reading Speech, Attorney-General Hulls said:

The right to life is a key civil and political right and is protected by the bill. As the provision is not intended to affect abortion laws, 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.

In her Second Reading Speech for the Abortion Law Reform Bill 2008, Minister Morand said:

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 compatibly with human rights under the charter.

A private member’s bill decriminalising abortion tabled last year included a statement of compatibility, which said:

This bill does not raise any human rights issues. The charter protects and promotes the human rights of ‘persons’, or ‘human beings’, regarded under Victorian law as existing from the time a child is born alive and exists separate from, and independent, of their mother. The charter does not disturb this well-established legal position and expressly provides that the provisions of the charter do not affect the law applicable to unlawful abortion the subject of the bill (section 48 of the charter).

For my earlier post critiquing the drafting of Charter s. 48, see here.

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