Weeks after the Abortion Law Reform Bill became an Act, a Ministerial response to a SARC query was published. It confirms that the Bill did not decriminalise all abortions performed by doctors in Victoria. Rather, the Minister says that the following scenario posed by SARC is ‘in theory possible’:
[I]f a doctor performed an abortion on a woman who was more than 24 weeks pregnant after unreasonably forming a belief that the abortion was appropriate in all the circumstances… such a doctor might be liable to prosecution under one of the “causing serious injury” offences in the Crimes Act, as a result of the extended meaning of “serious injury” introduced into that Act by the Bill.
The Minister claims that there is ‘little likelihood’ of this scenario actually occuring, because of the unlikelihood that two doctors will agree on something that is inconsistent with generally accepted medical practice. I’ll leave that issue to the health professionals, but the theoretical possibility raises a rights issue, because causing medical decision-making to be done in the shadow of a criminal charge for an offence attracting a twenty-year maximum sentence is arguably incompatible with the Charter’s right against unlawful or arbitrary inteferences in privacy. Alas, this significant rights issue for the pro-choice side of the debate was sidelined by the Charter’s 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.
Towards the end of the Abortion Law Reform Bill’s parliamentary debate, the pro-choice side responded to repeated references to the Charter by the pro-life side (in relation to the mandatory referral clause) by arguing that Charter s. 48 was, allegedly, sought by the Catholic Church. That’s a claim Rob Hulls made on the ABC, but I for one wonder if he was thinking of Charter s. 38(4), the exemption from the conduct mandate for religious bodies. At last week’s seminar, Pamela Tate revealed that the abortion issue ‘divided’ the consultation committee and that the view that abortion controversies should be resolved outside of the Charter stemmed from that. But, actually, the Committee favoured the narrower ACT approach, of only excluding the right to life, and its Report makes no mention of the rationale for the broader savings clause in the Bill itself. Tate insisted that Charter s. 48 was drafted to ensure that nothing at all in the Charter had any application to abortion. Strange that Charter s. 48 doesn’t quite say that (in comparison to, say, Charter s. 31.)
Anyway, the debate over the referral clause really demonstrates the stupidity of Charter s. 48, regardless of whose bright idea that clause was. Hulls’s main defence of the referral clause was that it did not require pro-life doctors to refer a patient to an individual pro-life doctor, but rather only required an ‘effective referral’, which presumably could be achieved by telling the patient to contact any public hospital. The problem with that defence is that it doesn’t fit the words of the clause:
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.
If it wasn’t for Charter s. 48, the interpretation mandate would almost certainly achieve exactly the result that Hulls described. But, alas, s8 will be one of the few provisions of Victorian law that won’t get the benefit of the Charter’s regime for interpretation.
Or maybe not so few. The other response to SARC by Minister Maxine Morand contains some chilling news indeed:
The Committee has sought my advice as to whether, because the Bill extends the operation of these offences, and the extended definition of “serious injury” is a law relating to abortion and therefore exempt from the effects of the Charter, the offences contained in sections 16, 17, 21, 23, 24 and 319 of the Crimes Act are therefore now also to be considered to be laws relating to abortion and exempt from the Charter. I confirm that, to the extent that the laws relate to child destruction and abortion, they will fall within the exemption provided by section 48.
So, now Charter s. 48 exempts, not only laws that are specifically about abortion and child destruction, but also, to some extent at least, some general laws too. Indeed, these general laws are major criminal offences in Victorian law, carrying substantial penalties. And, indeed, they include the very offences that will now hang over the heads of any doctors who are contemplating a patient’s request for a late abortion (thus ensuring that the Charter cannot be used to interpret away this unfortunate threat.)
Whoever thought up and drafted Charter s. 48 has done an enormous disservice to both sides of the abortion debate. The section’s consequences were felt during the debate and will continue to be felt from now on. Moreover, they will also be felt in relation to any future changes in abortion or child destruction law. Indeed, Charter s. 48 will insulate even the apocryphal law requiring the killing of blue-eyed babies at birth from the Charter. The Abortion Law Reform BIll failed to deal with one last bad abortion law on Victoria’s statute books: the one in the Charter itself.