Unfinished abortion law reform

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 consequences of Charter s. 28(2)

The first ever attempt to use the Charter as a point of order in Victoria’s parliament, once again a new use of the Charter prompted by the abortion bill:

Mr Kavanagh — On a point of order, President, the bill mentioned is out of order. The bill was not introduced in this house or in the other house with a statement of compliance with the Charter of Human Rights and Responsibilities. A statement of compliance is required under the Charter of Human Rights and Responsibilities Act before any bill with implications for rights in the charter can be considered by either house of this Parliament.

The minister in the other house and the responsible minister in this house have sought to rely on section 48 of the charter to avoid the need to produce a statement of compatibility. Legal opinion from legal firm Phillips Fox, which opinion is in the public domain, concludes that the minister was mistaken in so relying on that exclusion. Section 48 states in part: Nothing in this charter affects any law applicable to abortion or child destruction … But the bill affects much more than simply abortion and child destruction. The bill also affects a range of other rights that are detailed in the act, including guarantees of equality and non-discrimination under section 8(3) of the charter and issues of rights against unlawful or arbitrary interference with privacy under section 13(a) of the charter. The bill affects freedom of thought, conscience, religion and belief guaranteed under section 14 of the charter. There are also issues about whether the bill raises new criminal offences.

This point canvasses the question of the scope of Charter s. 48, citing not only the legal advice about clause 8 but also, it seems, SARC’s concern about amendments to the ‘serious injury’ offences in clause 10. If these concerns are right, then Charter s. 28(2) has been breached:

28(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.

(It’s possible that Charter s. 28(1) was also breached, but that depends on whether or not a statement was actually prepared for the Abortion Law Reform Bill.)

But what is the consequence of a breach? As the legal advice correctly pointed out, the Charter only spells out the (non-)consequences if the Bill is passed:

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.

So, what happens before the Bill is passed? Kavanagh argues:

A required statement was not put before either house and therefore consideration of this bill by this house is out of order. I have several copies of the legal opinion from Phillips Fox for the benefit of members of the house if they so desire; that opinion completely supports my contention.

But the point was rejected:

The PRESIDENT — Order! In response both to the point of order and Mr Theophanous’s rebuttal and to Mr Kavanagh’s further point, I need to remind the house that I adjudicate on matters contained within the standing orders. The issue as to whether or not Mr Kavanagh is correct is a matter for the house. I must say it is a complicated and interesting point of order that Mr Kavanagh has raised, but I am confident in the advice I have been given that I have no authority to rule on that matter; it is simply a matter for the house. Any questions relating to the validity of the act are simply matters for the courts.

The relevant standing order appears to be:

14.02 A Bill not prepared according to the Standing Orders and practices of the Council will be ordered to be withdrawn by the President.

I don’t know enough about the law of parliamentary procedure to know if Kavanagh is correct that the President that compliance with Charter s. 28(2) isn’t part of the ‘Standing Orders and practices’ of the Council. (The incorporation of statements of compatibility into Hansard is part of the sessional orders of the Legislative Assembly, but weirdly not of the Legislative Council; however, the Council seems to follow the Assembly’s ‘practice’.) But, if true, it raises what seems to be a significant gap in those standing orders or practices.

The right to a parliamentary debate

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. 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.

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.

Do hospitals have rights?

The Charter has made the front page of the Age twice in two days, both curiously on the issue of abortion, despite Charter s. 48, which provides that nothing in the Charter ‘affects any law applicable to abortion or child destruction.’ While the Minister took the view that Charter s. 48 removes any obligation to provide a statement of compatibility (and hence none was provided), SARC questioned whether Charter s.48 has any impact on the debate over bills, which aren’t laws and aren’t affected by the Charter.

Possibly to the surprise of some, the Charter has been raised almost exclusively by the pro-life side of the debate. They’ve picked their issue cleverly, focusing not on the abstract debate about whether or not foetuses have human rights but instead on Charter s. 14:

14(1) Every person has the right to freedom of thought, conscience, religion and belief, including- (a) the freedom to have or to adopt a religion or belief of his or her choice; and (b) the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.

(2) A person must not be coerced or restrained in a way that limits his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.

Catholic Archbishop Denis Hart wrote, in a ‘pastoral letter’:

The Bill is an unprecedented attack on the freedom to hold and exercise fundamental religious beliefs. It makes a mockery of the Victorian Charter of Human Rights and the Equal Opportunity Act in that it requires health professionals with a conscientious objection to abortion to refer patients seeking an abortion to other health professionals who do not have such objections. It also requires health professionals with a conscientious objection to abortion to perform an abortion in whatever is deemed an emergency. The Bill is clearly intended to require Catholic hospitals to permit the referral of women for abortions…

Catholic hospitals and the large number of Victorians they serve are also in a vulnerable position. Catholic hospitals will not perform abortions and will not provide referrals for the purpose of abortion. If this provision is passed it will be an outrageous attack on our service to the community and contrary to Catholic ethical codes. It will leave Catholic hospitals and doctors with a conscientious objection to abortion in a position where they will be acting contrary to the law if they act in accordance with their deeply held moral convictions. This Bill poses a real threat to the continued existence of Catholic hospitals. Under these circumstances, it is difficult to foresee how Catholic hospitals could continue to operate maternity or emergency departments in this state in their current form.

In an op-ed in today’s Age, Liberty Victoria Vice-President Anne O’Rourke responds to this Charter claim:

The Victorian Charter of Human Rights and Responsibilities does indeed guarantee a right to freedom of thought, conscience, religion and belief, as Archbishop Hart points out. There are two errors in his claim, however. The first is that only human beings, not hospitals or related entities, have human rights

O’Rourke here relies on Charter s. 6(1), which provides that ‘[o]nly persons have human rights’. This provision reflects traditional human rights advocates’ dislike of corporations. Indeed, the Victorian Law Reform Commission, whose recommendations are responsible for the Abortion Law Reform Bill’s ‘conscience clause’, expressly adopted this prejudice as a reason to reject the approach taken in Western Australia of providing every ‘person, hospital, health institution, other institution or service’ with a conscience clause. The VLRC wrote:

As freedom of conscience is generally understood to be held by individuals, the conscience
provision should not extend to corporations. This is consistent with existing conscience
provisions in other Victorian laws. The danger in extending the provision to institutions is that it may establish a precedent of corporations holding interests that could be categorised as human rights. This could lead to perverse outcomes.

What are those ‘perverse outcomes’? A footnote explains:

See, eg, RJR-MacDonald Inc v Canada (Attorney General) [1995] 3 SCR 199. Free speech extends to commercial speech—tobacco advertising laws contravened freedom of expression. There is no reason to extend the provision to organisations because the new law of abortion will not establish a positive duty to perform abortions.

Yes, that old furphy, the supposedly controversial extension of freedom of expression to commercial – not corporate – speech. Not only was the Supreme Court of Canada’s decision in that case entirely correct – tobacco sellers were barred from saying that required health warnings were from the government, not them; and the Canadian government declined to provide any evidence for why less broad bans would fail to achieve the desired effect; remedying both defects led to the Supreme Court upholding the new law – but it is, at best, an argument for restritcing free expression, not other rights. The real gripe of Australian human rights advocates with the Canadian case, and corporations in general, isn’t any analysis of the decision – there’s NEVER anything more than a footnote – but anger that the Canadian government’s shoddy lawyering gave the anti-Charter mob a free kick. While the rejection of corporate human rights is sometimes belatedly justified by their supposed power (and hence the potential for them to ‘abuse’ human rights), that objection is scarcely applicable to all non-human entities. Since when have hospitals and health providers been deep pocketed abusers of legal rights?

O’Rourke’s reliance on the limitation of human rights to humans is transparently specious in this case. No-one’s claiming that the hospitals (e.g. the building?) have a freedom of conscience. Rather, Hart’s claim is made on behalf of the many human beings with a stake in such hospitals, including donors, managers, employees, patients and Catholics in general. Indeed, Charter s. 14(1)(b) expressly refers to people demonstrating their believes ‘as part of a community’. O’Rourke (like the VLRC) does the pro-choice side an enormous disservice by relying on a miserly technical knockout, especially one whose flaws are transparent to lay people. Liberty Victoria ought to disown this risible use of Charter s. 6(1).

O’Rourke is on much stronger ground in relation to her second argument, based on Charter s. 7(2):

SARC on abortion

The Scrutiny of Acts and Regulations Committee’s report into the Abortion Law Reform Bill has now been tabled in parliament and is available on the Committee’s website. Because of the Minister’s view that Charter s. 48 ruled out the application of Charter s. 28 to this Bill, SARC’s report will be the only official analysis of the Bill’s compatibility with the Charter that will be available for this week’s parliamentary debate. SARC noted some opposing considerations on this question:

The Committee observes that:

• Charter s. 48 is limited to ‘any law applicable to abortion or child destruction’. The Bill is not (yet) law.
• Charter s. 48 provides that nothing in the Charter ‘affects’ a law. Statements of compatibility have no legal effect.
• Clause 10, in extending the definition of ‘serious injury’ in the Crimes Act 1958 to cover destruction of a foetus, goes beyond the current definitions of abortion and child destruction (which are presently limited to intentional conduct) to cover reckless destruction, threats to destroy, conduct causing danger of destruction, negligent destruction, and dangerous driving causing destruction of foetuses.

SARC, in any case, has a Charter reporting function under s. 17 of the Parliamentary Committees Act, which is not part of the Charter itself and therefore is not affected by Charter s. 48.

SARC’s report identified four issues of Charter concern with the Bill:

• Decriminalisation of abortion: The Commitee observed that compatibility depends on whether or not foetuses have Charter rights (i.e. whether they are ‘human beings’ under Charter ss. 3(1) & 6(1)) and, if so, whether or not decriminalisation is a reasonable limit on any right of foetuses to have their life protected by the state under Charter s. 9. These questions are discussed by Germany’s Federal Constitutional Court, notably when unification raised the question of the constitutionality of East Germany’s very liberal abortion laws.

• Potential criminalisation of late abortion: The Committee was concerned that the combination of: (1) provisions permitting late abortions ‘only’ where two doctors have a ‘reasonable’ belief that abortion is appropriate in the circumstances; and (2) a provision extending the criminalisation of intentional serious injury without ‘lawful excuse’ to include foetal destruction that was not in accordance with the Bill; might mean that doctors face the spectre of liability to serious prosecution if they make an unreasonable decision about the appropriateness of a late abortion. This may potentially be an unlawful interference in the right of patients to privacy under Charter s. 13(a).
• Mandatory referrals: The Committee thought that a provision requiring doctors with a conscientious objection to refer patients seeking an abortion to doctors without such an objection might be incompatible with those doctors’ right not to be coerced away from practices informed by their beliefs under Charter s. 14(2).
• Exemptions from the Charter: The Committee was also concerned that the extension of the definition of serious injury in the Crimes Act to include some abortions or child destructions may have the effect of exempting a number of major crimes from the Charter (pursuant to Charter s. 48).

It’ll be interesting, perhaps, to see whether the Charter features in the coming free debate and vote.

The Charter vs. Charter s. 48

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?

Un-Chartered abortion

Yesterday was a landmark day in Australian abortion law, with a government bill going before Parliament for the decriminalisation of abortion. However, it is also a landmark in Charter practice, as this is the first bill since 1/1/7 that goes to parliament without a statement of compatibility. The reason is this provision:

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

In the Charter’s Second Reading Speech, Attorney-General Hulls said:

The right to life is a key civil and political right and is protected by the bill. As the provision is not intended to affect abortion laws, a clause is included to put beyond doubt that nothing in the charter affects the law in relation to abortion or the related offence of child destruction. The government is mindful of the range of strong community views on this issue and has never intended the charter, which is aimed at enshrining the generally accepted core civil and political rights, to be used as a vehicle to attempt to change the law in relation to abortion.

In her Second Reading Speech for the Abortion Law Reform Bill 2008, Minister Morand said:

In accordance with section 48 of the Charter of Human Rights and Responsibilities, a statement of compatibility for the Abortion Law Reform Bill 2008 is not required. The effect of section 48 is that none of the provisions of the charter affect the bill. This includes the requirement under section 28 of the charter to prepare and table a compatibility statement, and the obligation under section 32 of the charter to interpret statutory provisions compatibly with human rights under the charter.

A private member’s bill decriminalising abortion tabled last year included a statement of compatibility, which said:

This bill does not raise any human rights issues. The charter protects and promotes the human rights of ‘persons’, or ‘human beings’, regarded under Victorian law as existing from the time a child is born alive and exists separate from, and independent, of their mother. The charter does not disturb this well-established legal position and expressly provides that the provisions of the charter do not affect the law applicable to unlawful abortion the subject of the bill (section 48 of the charter).

For my earlier post critiquing the drafting of Charter s. 48, see here.

The Charter and abortion

The Victorian Law Reform Commission today tabled its report on the decriminalisation of abortion, proposing three reform models. A conscience vote on whichever model the government chooses is expected in the Victorian Parliament before the end of the year. But what role will the Charter play?

The shorter answer is: none. The medium answer is:

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

But the long answer is: jeez, yet another example of bad drafting! Section 48 is yet another unique Victorian provision, the product of the dreaded meddlers who couldn’t leave the Consultation Committee’s draft well alone.

The first problem: what does s48 actually do? Here’s what the VLRC thinks it does:

The Charter, therefore, has no effect upon the law of abortion in Victoria, and the rights contained in the Charter are not applicable in abortion cases.

Well, the first bit’s gotta be right, though it isn’t very specific. The major provision of the Charter that ‘affects any law’ is the interpretation mandate. It’s clear enough that Charter s. 32 doesn’t apply to abortion and child destruction laws. However, the status of other Charter provisions that are about laws – the requirement of a statement of compatibility, SARC’s reporting function, the declaration power – is less clear, because none of them have any legal effect. Indeed, the Charter says this explicitly for the statements and declaration power. So, arguably, they aren’t affected by Charter s. 48. If the meddlers meant to exclude Charter ss. 28, 30 & 36, why didn’t they use the language of Charter s. 31(5), which provides that the Charter ‘has no application to’ provisions that are the subject of an override?

But I’m more dubious about the final part. Charter s. 48 says nothing about ‘cases’. It doesn’t use the language of Charter. s49(2), which says that the Charter doesn’t affect certain proceedings. Instead, it talks about laws. Abortion laws. Child destruction laws. Proceedings involve lots and lots of other laws: procedural laws, evidence laws, general substantive laws, the Charter’s rights. Why on earth should people, say, charged with the offence of abortion be denied the righ to a fair hearing? Or to the ban on retrospective penalties? Or double jeopardy? Or privacy? Or freedom from discrimiantion? That being said, Charter s. 48 refers broadly, albeit vaguely, to ‘any law applicable to’ abortion or child destruction, so who knows how far that will go? I’m betting that the meddlers have no idea. The EM, aside from simply restating Charter s. 48 verbatim, clarifies only that ‘any law’ includes both statutory and common law. This is a (unncessarily clumsy) reference to both the terms of s. 65 of the Crimes Act and the key Mehennnit decision (although the VLRC correctly states that Mehennit is an exercise in statutory interpretation, not common law analysis.)

And the VLRC’s complex recommendations on decriminalisation make the question of what is an abortion law very interesting.

The Charter vs the Pill

Over at The Court, there’s a lengthy discussion of a 5-4 decision of Chile’s Constitutional Court striking down a decree requiring the contraceptive pill to be distributed through the public health system as incompatible with that country’s right to life. The majority held that: (a) life begins at conception; (b) the right to life is absolute; (c) it’s possible that the contraceptive pill stops fertilised gametes from implanating.

The Charter permits (but does not require) a consideration of the decisions of Chile’s (and everyone else’s) courts on human rights issues in determining the meaning of Victorian statutes:

32(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

So, the Chilean decision could be considered when interpreting Charter s. 9:

Every person has the right to life and has the right not to be arbitrarily deprived of life.

This provision differs from the equivalent in the ACT HRA in not specifying that life begins at birth. (The Chilean provision specifies that the right to life includes those ‘about to be born’!)

However, even if Charter s. 9 is interpreted as protecting life from conception, it’s unlikely that the remainder of the Chilean decision will be followed here.