The abortion debate yields another first: the first (to my knowledge) published legal advice on the Charter as part of a political debate. Such advices are a regular part of the landscape in other jurisdictions with human rights laws, so it’s surely a positive development. The advice is from Phillips Fox to Catholic Health Australia Inc and is written (or signed) by partners Nigel Preston and Rachel Walsh. So, did CHA get their money’s worth?
The major claim of the advice is that there should have been a statement of compatibility with respect to clause 8. The problem is Charter s. 48:
48 Nothing in this Charter affects any law applicable to abortion or child destruction, whether before or after the commencement of Part 2.
Preston and Walsh’s argument is:
Section 48 is a savings provision, intended to protect laws concerning abortion from being interfered with by or challenged under the Charter, whenever they came into effect. In particular, section 48 was intended to protect the common law on abortion from challenge under section 9 of the Charter… Indeed, an early exposure draft of the Charter contained a caveat to the Right to Life provision that it applied only after birth.
Insofar as the Bill is concerned with legalising or decriminalising aspects of abortion, it is correct to say that those provisions are not subject to the legislative processes established by the Charter. However, the problem is that this Bill affects rights other than those concerned with the decriminalisation of abortion. Clause 8 of the Bill contains provisions that go beyond the remit of section 48 of the Charter, and so should be subject to the Charter’s process for scrutinising the Bill for compatibility with human rights and to other Charter provisions (including the interpretive obligation in section 32).
Whereas SARC, in its report, focussed on the words ‘law’, ‘applicable’ and ‘affects’, this argument centres on Charter s. 48’s alleged purpose, tying it exclusively to the ‘legalising or decrininalising aspects’ of abortion and child destruction. I’m not so sure that the criminal law angle on abortion can be so readily separated from the medical law angle – or that the purpose of Charter s. 48 can be precisely discerned – but there’s no doubt that the scope of Charter s. 48 is quite a quandary.
So, what are the consequences if parts of the bill are outside Charter s. 48’s scope? That depends on these two sections:
28(1) A member of Parliament who proposes to introduce a Bill into a House of Parliament must cause a statement of compatibility to be prepared in respect of that Bill.
(2) A member of Parliament who introduces a Bill into a House of Parliament, or another member acting on his or her behalf, must cause the statement of compatibility prepared under subsection (1) to be laid before the House of Parliament into which the Bill is introduced before giving his or her second reading speech on the Bill.
(3) A statement of compatibility must state- (a) whether, in the member’s opinion, the Bill is compatible with human rights and, if so, how it is compatible; and (b) if, in the member’s opinion, any part of the Bill is incompatible with human rights, the nature and extent of the incompatibility.
29 A failure to comply with section 28 in relation to any Bill that becomes an Act does not affect the validity, operation or enforcement of that Act or of any other statutory provision.
Preston and Walsh say:
You may be confronted by an argument that the failure to comply with the Charter has no consequences. The basis of the argument is that the Charter requires a process of consideration of compatibility with human rights to be followed at the time of second reading of a Bill, but the Act which flows from the Bill is not invalidated if that process is not followed…. To our thinking, section 29 of the Charter is not the point in this case. The Bill is not yet an Act. This section is designed to remedy a mistake in the processes leading to an Act. This section is not a mechanism to avoid consideration of the Charter in relation to any Bill where the Charter should be considered.
That’s certainly true. But it does mean that this legal advice is actually about the legality of non-justiciable parliamentary process. Anyway, Preston and Walsh go on:
The central point is that the human rights protected by the Charter should have been considered at the time when this Bill was introduced into Parliament. The clear objective of the Charter is to facilitate a consideration of those human rights which are protected by the Charter in the debate on this Bill. The wrongful exclusion of the Charter from debate in relation to this Bill has cut short a proper consideration of the human rights which may be affected by the Bill. According to the second reading speech, the Charter was intended to promote a ‘dialogue model of human rights’, which ‘seeks to address human rights issues though a formal dialogue’ between branches of government. The exclusion of the Charter from debate contradicts this intended goal. It is not for us to say what might have happened if the Charter had been considered in Parliamentary debate. It is not for us to conjecture whether the Bill would have been amended, or not. This is a matter for Parliament, but more particularly, it is a matter for a properly informed Parliament.
Speaking of the ‘exclusion’ of the Charter from parliamentary debate is a little extreme. No-one’s stopping the Charter being mentioned there or elsewhere. All that’s missing is the statement of compatibility. (And, ahem, the Parliament was ‘informed’ (properly or otherwise) by SARC’s report. SARC suggested a similar conclusion on the possible requirement of a statement of compatibility, but by a different argument: that Charter s. 48 didn’t have any impact at all on Charter s. 28, because it only affects laws, not bills.)
The advice then goes on to suggest four rights that clause 8 limits:
- Charter s. 8(3): The argument here is that clause 8 places a ‘greater burden’ on people with religious beliefs opposed to abortion. This is an indirect discrimination argument and I’m not sure that it fits well with the ‘equal protection of the law’ language of Charter s. 8(3). Preston and Walsh are on stronger (but more tangential) ground when they make a Charter s. 8(2) argument: that the requirement to disclose your objection denies ‘equal enjoyment’ of the right to privacy to people with religious views against abortion. (Note that both of these arguments are limited to religious conscientious objections. That’s because non-religious beliefs are not a discrimintion attribute under the Equal Opportunity Act. Beats me why, but the VLRC relied on that distinction as part of their argument for not including a conscience clause in the Abortion Law Refom BIll.)
- Charter s. 13(a): The argument here is all about the requirement to disclose your conscientious objection. That certainly infringes privacy, but is it an ‘unlawful’ or ‘arbitrary’ interference? Preston & Walsh unconvincingly suggest it’s the latter:
‘Arbitrary’ suggests a capricious decision made without appropriate consideration, or potentially a decision which affects some individuals more heavily than others. In this case, the Bill proposes interference with the privacy of a health practitioner which is arbitrary, and therefore contrary to the section 13(a) of the Charter.
- Charter s. 14: The ‘freedom of belief’ argument is straightforward, of course, and you really have to wonder why Preston & Walsh felt the need to muddy the waters with the other arguments. Weight of numbers? Preston & Walsh, alas, also muddied Charter s. 14 by describing it as ‘(at its heart) the right to freedom of religion’. Bad luck, people who want freedom of non-religious beliefs. Anyway, they did up an old post-Roe-v-Wade decision permitting publicly funded hospitals to decline to perform procedures protected by the bill of rights (in that case sterilisation.)
- Charter s. 15(1): Finally, they make a right to silence argument about the ‘revealing your conscience’ clause, but weirdly frame it around the ‘right to hold an opinion without interference’. Isn’t ‘freedom of expression’ the relevant argument? Or are they trying to avoid the Charter s. 15(3) savings clause?
Notably lacking in the analysis is any Charter s. 7(2) discussion. But, given that their point is that clause 8 ought to have been addressed by a statement of compatibility, it is enough, I guess, to argue that clause 8 limits a number of rights. They conclude:
In the paragraphs above we have digested the fundamentals of some arguments which highlight the impact of the Bill on the human rights of health practitioners. There may be other points which we have not considered; and the central message of this correspondence is that the Legislative Council ought not proceed to vote on this Bill without referring it back to the Legislative Assembly for proper consideration of the human rights which may be potentially affected by the Bill.
So, I guess we’ll see a motion to this effect tomorrow…