Charter s. 36 vs abortion

Victoria’s first major public Charter rights debate proceeds apace, with earlier threats of hospital closures being augmented by threats of mass retirement and immigration of doctors in response to clause 8(1)(b) of the Abortion Law Reform Bill 2008:

8(1) If a woman requests a registered health practitioner to advise on a proposed abortion, or to perform, direct, authorise or supervise an abortion for that woman, and the practitioner has a conscientious objection to abortion, the practitioner must…  (b) refer the woman to another registered health practitioner in the same regulated health profession who the practitioner knows does not have a conscientious objection to abortion.

But the Weekend Australian tells of a different sort of threat:

It is understood Catholic Health Australia, which has already threatened to withdraw medical services from its 15 hospitals in Victoria, will challenge the legal validity of the most contentious provision in the abortion bill – forcing doctors with a conscientious objection to abortion to refer patients elsewhere for a termination. It is believed the upper house MPs who will vote on the bill, after it passed comfortably through the lower house a fortnight ago, will be warned against supporting the proposed legislation because the legal status of the bill is uncertain. The nub of Catholic Health Australia’s argument is that mandating doctors to act a certain way in their medical practice is in breach of the Victorian Charter of Human Rights. The charter is a set of human rights, freedoms and responsibilities protected by law. This would be the first challenge to the charter since it was introduced in 2006.

I assume that this ‘challenge’ to the legislation is actually a reference to the procedure on Charter s. 36(2):

36(2) Subject to any relevant override declaration, if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section.

Contrary to the suggestion in the newspaper article, such a challenge could not be to the ‘legal validity’ of the law (once enacted):

36(5) A declaration of inconsistent interpretation does not- (a) affect in any way the validity, operation or enforcement of the statutory provision in respect of which the declaration was made

Instead, the sole ‘legal effect’ of such a declaration is to require Morand to make a statement to the Parliament:

37 Within 6 months after receiving a declaration of inconsistent interpretation, the Minister administering the statutory provision in respect of which the declaration was made must- (a) prepare a written response to the declaration; and (b) cause a copy of the declaration and of his or her response to it to be- (i) laid before each House of Parliament; and (ii) published in the Government Gazette.

The benefits (if any) of a declaration are extra-legal, including a possible political win and (perhaps) a plea in mitigation for anyone facing professional censure or other action for breaching the referral rule.

But that assumes that such a declaration will be given. Putting aside the substantive issue of whether or not clause 8(1)(b) is compatible with Charter s. 14, any ‘challenge’ using s36(2) faces some significant procedural obstacles.

First, there’s the Charter’s abortion savings provision:

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

To avoid this, Catholic Health Australia would have to argue that either clause 8(1)(b) is not a ‘law applicable to abortion’ or that Charter s. 48 doesn’t prevent the application of Charter s. 36(2) to such a law. The former argument would have to claim that Charter s. 48 is limited to laws regulating the procedure of abortion, rather than what might happen before or afterwards. This argument seems unlikely in light of the broad terminology of ‘applicable to’. The latter argument has more legs because of Charter s. 36(5). Because a declaration cannot affect a law, then it arguably isn’t within the scope of Charter s. 48, which uses the term ‘affects’, rather than ‘application’ (as in Charter s. 31, the override provision.) But Pound & Evans argue that:

…ss 32 and 36 are so intimately conntected that it is unlikely that a declaration of inconsistent interpretation could be made under s36 without first considering whether it is possible in accordance with s32(1) to interpret the statutory provision in question compatibly with human rights.

It seems to me that, while Charter ss 32 & 36 are ‘connected’, it is less clear that the connection is as intimate as Pound & Evans claim. Why is it impossible to make a declaration in the absence of an interpretation mandate? And, anyway, doesn’t Charter s. 48 just make it easy to form the requisite opinion that an abortion law ‘cannot be interpreted consistently with a human right’?

Rather, Pound & Evans’s objection strikes me as really being about a separate procedural obstacle, a precondtion for a court contemplating making any declaration:

36(1) This section applies if- (a) in a Supreme Court proceeding a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter; or (b) the Supreme Court has had a question referred to it under section 33; or (c) an appeal before the Court of Appeal relates to a question of a kind referred to in paragraph (a).

The point of this section is that you can’t just bring a ‘Charter challenge’. Rather, such challenges can only be brought in the context of regular litigation that raises the Charter. Indeed, it must raise one of two specific questions of law: one that ‘relates to’ the Charter’s ‘application’ or one that ‘arises with respect to the interpretation of’ the statutory provision for which a declaration is sought. The latter doesn’t seem to be possible because Charter s. 48 clearly excludes Charter s. 32’s use for 8(1)(b) (assuming it’s a law applicable to abortion.)

So, the only avenue is to come up with a proceeding where ‘a question of law arises that relates to the application of this Charter’. Some possible strategies:

  • Commence proceedings seeking a declaration. The Attorney-General will then object on the grounds of both Charter ss. 36(1) and 48. The Catholic Health Service can then say: ah ha! Now a question of law has arisen with respect to the Charter’s application! Gotcha! But I think the Courts will argue that that question of the Charter’s application can’t arise until the procedural barriers – certainly Charter s. 36(1) – are met.
  • Get a ‘woman’ to come into a Catholic Health Service and ask a doctor for an abortion. (She doesn’t have to be pregnant, but she can’t be a man.) The doctor can then commence proceedings seeking a declaration that she or he doesn’t have to refer her to a pro-choice doctor. Catholic Health Service can then argue that clause 8(1)(b) should be ‘interpreted’ as not requiring a referral. That triggers Charter s. 36(1)’s interpertation limb. If the A-G tries to beat that by arguing Charter s. 48, then that triggers Charter s. 36(1)’s application limb. Gotcha! A problem here is that there doesn’t seem to be a genuine interpretative issue here, although it might be said that Charter s. 36(1) doesn’t really require that (otherwise all tightly worded statutes would be immune from a declaration.)
  • If the interpretation approach fails, then get the doctor to refuse to refer the patient. Then the Catholic Health Service can sack the doctor over the non-referral and the doctor can sue the Catholic Health Service for failing to meet its obligations under Charter s. 38 to act compatibly with the doctor’s right to freedom of belief. Catholic Health Service can then raise Charter s. 38(2) to argue that clause 8(1)(b) made it unreasonable not to sack the doctor. That raises an issue of the Charter’s application. (It’s not really clear that the issue relates specifically to clause 8(1)(b), but an anomaly in Charter s. 36(1) is that, while the ‘interpretation’ limb is all about the particular provision being challenged, the ‘application’ limb isn’t.) Gotcha! One problem, though, is that the Catholic Health Service has a much more obvious defence to the conduct mandate:

38(4) Subsection (1) does not require a public authority to act in a way, or make a decision, that has the effect of impeding or preventing a religious body (including itself in the case of a public authority that is a religious body) from acting in conformity with the religious doctrines, beliefs or principles in accordance with which the religious body operates.

So, a court might hold that no question of the applicaton of the Charter arises!

  • So, instead, maybe this will all have to happen in a non-religious hospital….

In all the above cases, a lingering problem is that the granting of a declaration of inconsistent intepretation is discretionary and the Court may regard the fact that the proceedings is transparently a sham just to circumvent Charter s. 36(1) is a reason not to grant a declaration. So, maybe the Catholic Health Service will have to wait until a genuine case arises. Which may never happen.

Good God! Charter s 36(1) seems to be a yet another provision that, in trying to head off Charter litigation, brings on an awful lot of legal complexity. And I feel like I’ve only just scratched its surface! The UKHRA and ACTHRA provisions seem much simpler:

4(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.

32(1) This section applies if— (a) a proceeding is being heard by the Supreme Court; and (b) an issue arises in the proceeding about whether a Territory law is consistent with a human right.

And, you’d never guess it, but the weird ‘application’ limb of Charter s. 36(1) wasn’t in the Consultation Committee’s draft. So, instead, it was the work of the meddlers, those crazy dudes who ‘improved’ the draft in oh so many ways in the months between the Committee’s report and the Charter Bill’s introduction. Yet another plank in the conspiracy theory that one or more Victorian public servants deliberately white-anted the Charter before it ever got enacted…

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