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.

The introductory print of the bill defined ‘person’ (as in Charter 6(1)’s ‘Only persons have human rights’) as a ‘natural person’! But Hulls amended that on the floor of the house so that ‘natural person’ was replaced with ‘human being’, leaving the door open for an argument that the Charter rights extend to the unborn. Interestingly, the Statement of Compatibility for a bill presently before Parliament, the Research Involving Human Embryos Bill, weighs into this question:

The NHMRC’s definition of a human embryo, which is nationally applied, is ‘a discrete entity arising from the first mitotic division when fertilisation of a human oocyte by a human sperm is complete and has not reached 8 weeks of development since the mitotic division’. At this stage the human embryo does not have legal personhood and therefore the charter rights are not engaged.

This Statement was tabled by the Minister for Health, while Hulls issued the Statement for the closely related Assisted Reproductive Treatment Bill. Even though the latter bill contains provisions relating to the ‘disposal’ of stored embryos, its Statement of Compatibility doesn’t address the issue of the scope of the Charter’s right to life.

[EDIT: The plot thickens. Hulls has told the ABC: “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”. I wonder if the Pope was responsible for Charter s. 39(1) too?]

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