For obvious reasons, Charter s. 48 – the Charter’s savings provision for abortion and child destruction laws – is very much on my mind. Beyond bland quoting of published views, I won’t be commenting here on exactly how Charter s. 48 interacts with the Abortion Law Refom Bill 2008.
But there’s one Victorian law about abortion that the Bill leaves untouched. It’s this one:
48 Nothing in this Charter affects any law applicable to abortion or child destruction, whether before or after the commencement of Part 2.
So, here’s a puzzle: does the Charter apply to Charter s. 48? In particular, could someone seek a declaration of inconsistent interpretation about Charter s. 48?
The phrase ‘law applicable to abortion or child destruction’ appears to cover Charter s. 48 itself. That would seem to imply that the Charter (including Charter s. 36, the declaration section) doesn’t affect Charter s. 48. But the problem is that the phrase ‘in this Charter’ surely also covers Charter s. 48, which is obviously in the Charter. That means that, by the terms of Charter s. 48, Charter s. 48 is ‘saved’ from… Charter s.48. And that means that the exemption of effects of the Charter (whatever they are) from abortion laws doesn’t extend to Charter s. 48. And that means that the Charter (including Charter s. 36) do affect Charter s. 48. But so does Charter s. 48. Which means that the Charter doesn’t affect Charter s. 48. Which means that Charter s. 48 doesn’t affect Charter s. 48. Which means that the Charter does affect Charter s. 48….
And so on. In short, Charter s. 48 basically has the following form: “This Act doesn’t apply to this section.” The dreaded self-referential law! Indeed, it’s a self-contradicting law. That’s the worst sort!! Perhaps my double degree in theoretical maths and law will be useful at last. If only I remembered any of the maths! What is the set of all sets that don’t include themselves? (I always got that one wrong in the exam!) And where’s my copy of Gödel Escher Bach?
Um, maybe it’s best if Charter s. 48 isn‘t a law applicable to abortion or child destruction’. For example, I guess you could argue that Charter s. 48 is really a law applicable to laws applicable to abortion or child destruction, which isn’t the same thing as a law applicable to abortion, etc. So, Charter s. 48 wouldn’t be self-referential anymore. That’d be a relief! Or would it? Continue reading