International Covenant on Civil International Covenant on Civil and Political Rights (ICCPR)and Political Rights (ICCPR)

Article 18Article 18

1.1. Everyone shall have the right to freedom of thought, Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others freedom, either individually or in community with others and in public or private, to manifest his religion or belief and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his his freedom to have or to adopt a religion or belief of his choice. choice.

3. Freedom to manifest one's religion or beliefs may be 3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of or morals or the fundamental rights and freedoms of others. others.

International Covenant on Civil and International Covenant on Civil and Political Rights (ICCPR)Political Rights (ICCPR)

Article 4 Article 4 1 . In time of public emergency which threatens the life of the 1 . In time of public emergency which threatens the life of the

nation and the existence of which is officially proclaimed, the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent situation, provided that such measures are not inconsistent with their other obligations under international law and do not with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. sex, language, religion or social origin.

2. 2. No derogationNo derogation from articles 6, 7, 8 (paragraphs I and 2), 11, from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 15, 16 and 18 18 may be made under this provision. may be made under this provision.

Charter of Human Rights and Charter of Human Rights and Responsibilities Act 2006Responsibilities Act 2006

Section 14Section 14

(1) Every person has the right to freedom of thought, conscience, religion and belief, (1) Every person has the right to freedom of thought, conscience, religion and belief, including—including—

(a) the freedom to have or to adopt a religion or belief of his or (a) the freedom to have or to adopt a religion or belief of his or her choice; andher choice; and

(b) the freedom to demonstrate his or her religion or belief in (b) the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either worship, observance, practice and teaching, either

individually or as part of a community, in public or inindividually or as part of a community, in public or inprivate.private.

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

Charter of Human Rights and Charter of Human Rights and Responsibilities Act 2006Responsibilities Act 2006

Section 7(2)Section 7(2)

A human right may be subject under law only to A human right may be subject under law only to such reasonable limits such reasonable limits as can be demonstrably justified in a free and democratic as can be demonstrably justified in a free and democratic societysociety based on human dignity, equality and freedom, and taking into based on human dignity, equality and freedom, and taking into account all relevant factors including—account all relevant factors including—

(a) the nature of the right; and(a) the nature of the right; and(b) the importance of the purpose of the limitation; and(b) the importance of the purpose of the limitation; and(c) the nature and extent of the limitation; and(c) the nature and extent of the limitation; and(d) the relationship between the limitation and its purpose; and(d) the relationship between the limitation and its purpose; and

(e) (e) any less restrictive means reasonably available to any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.achieve the purpose that the limitation seeks to achieve.

cl. 8(1) Abortion Law Reform Billcl. 8(1) Abortion Law Reform Bill

Obligations of registered health practitioner who has Obligations of registered health practitioner who has conscientious objectionconscientious objectionIf a woman requests a registered health practitioner to advise If a woman requests a registered health practitioner to advise on a proposed abortion, or to perform, direct, authorise or on a proposed abortion, or to perform, direct, authorise or supervise an abortion for that woman, and the practitioner has supervise an abortion for that woman, and the practitioner has a conscientious objection to abortion, the practitioner must—a conscientious objection to abortion, the practitioner must—

(a)(a) inform the woman that the practitioner has a inform the woman that the practitioner has a conscientious objection to abortion; andconscientious objection to abortion; and

(b)(b) refer the woman to another registered health refer the woman to another registered health practitioner in the same regulated health profession practitioner in the same regulated health profession who the who the practitioner knows does not have a conscientious objection to practitioner knows does not have a conscientious objection to abortion.abortion.

cl. 8(3) Abortion Law Reform Billcl. 8(3) Abortion Law Reform Bill

Despite any conscientious objection to Despite any conscientious objection to abortion, a registered medical practitioner is abortion, a registered medical practitioner is under a duty to perform an abortion in an under a duty to perform an abortion in an emergency where the abortion is necessary to emergency where the abortion is necessary to preserve the life of the pregnant woman.preserve the life of the pregnant woman.

cl. 8(4) Abortion Law Reform Billcl. 8(4) Abortion Law Reform Bill

Despite any conscientious objection to Despite any conscientious objection to abortion, a registered nurse is under a duty to abortion, a registered nurse is under a duty to assist a registered medical practitioner in assist a registered medical practitioner in performing an abortion in an emergency where performing an abortion in an emergency where the abortion is necessary to preserve the life of the abortion is necessary to preserve the life of the pregnant woman.the pregnant woman.

Re Cl 8 (3)Re Cl 8 (3)

A Catholic doctor acting in good conscience to A Catholic doctor acting in good conscience to save the life of a woman and acting save the life of a woman and acting professionally with the requisite specialist professionally with the requisite specialist skills and certification could reach a decision skills and certification could reach a decision with the mother to remove a foetus or child with the mother to remove a foetus or child in in uteroutero if the failure to remove the foetus or if the failure to remove the foetus or child would necessarily result in the woman’s child would necessarily result in the woman’s death. The Victorian bill changes nothing in death. The Victorian bill changes nothing in that regard.that regard.

Re cl. 8(3)Re cl. 8(3)

Insofar as the Victorian bill imposes a duty Insofar as the Victorian bill imposes a duty beyond that, it violates the professional beyond that, it violates the professional relationship between doctor and patient.relationship between doctor and patient.

Re Cl 8 (3)Re Cl 8 (3)

Doctors in Conscience against Abortion Bill Doctors in Conscience against Abortion Bill state:state:

““The concept of an ‘emergency abortion is a The concept of an ‘emergency abortion is a clinical fiction. Almost always the clinical fiction. Almost always the management of complicated and life-management of complicated and life-threatening pregnancies need not necessitate threatening pregnancies need not necessitate an abortion.”an abortion.”

Re cl 8(4)Re cl 8(4)

Ministerial Advice to the ANFMinisterial Advice to the ANF

““Nurses who are employed, for example, in operating theatres in hospitals will not Nurses who are employed, for example, in operating theatres in hospitals will not have a direct relationship with the woman in question, therefore the conscientious have a direct relationship with the woman in question, therefore the conscientious objection clause will not apply. If they do not wish to be involved with abortion objection clause will not apply. If they do not wish to be involved with abortion procedures, they should inform their employer of this, but they will not be covered procedures, they should inform their employer of this, but they will not be covered by clause 8. by clause 8.

“State equal opportunity legislation already protects such nurses from “State equal opportunity legislation already protects such nurses from discrimination where they hold a conscientious objection based on religious belief. discrimination where they hold a conscientious objection based on religious belief. As a consequence, employers are already legally obliged to respect such beliefs, so As a consequence, employers are already legally obliged to respect such beliefs, so there is no need for this Bill to make express provision to protect the employment there is no need for this Bill to make express provision to protect the employment status of those with a conscientious objection.”status of those with a conscientious objection.”

So why have cl 8(4)?So why have cl 8(4)?

s. 48 Charters. 48 Charter

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

s. 7(3) Charters. 7(3) Charter

Nothing in this Charter gives a Nothing in this Charter gives a person, entity or public authority a person, entity or public authority a right to limit (to a greater extent than right to limit (to a greater extent than is provided for in this Charter) or is provided for in this Charter) or destroy the human rights of any destroy the human rights of any person.person.

Claims by Liberty VictoriaClaims by Liberty Victoria

““The The Abortion Law Reform BillAbortion Law Reform Bill should be passed should be passed without amendment.” without amendment.”

The conscientious objection clause is “consistent with The conscientious objection clause is “consistent with the Australian Medical Association's code of ethics”. the Australian Medical Association's code of ethics”.

““To claim the To claim the Abortion Law Reform BillAbortion Law Reform Bill breaks new breaks new ground or imposes unprecedented obligations on ground or imposes unprecedented obligations on hospitals or medical staff is wrong and misleading. hospitals or medical staff is wrong and misleading. The bill does not do so.”The bill does not do so.”

AMA Code of EthicsAMA Code of Ethics

[W]hen a personal moral judgement or religious belief alone prevents you [W]hen a personal moral judgement or religious belief alone prevents you from recommending some form of therapy, inform your patient from recommending some form of therapy, inform your patient so that they so that they may seek care elsewheremay seek care elsewhere … …

Recognise that you may decline to enter into a therapeutic relationship Recognise that you may decline to enter into a therapeutic relationship where an alternative health care provider is available, and the situation is where an alternative health care provider is available, and the situation is not an emergency one.not an emergency one.

Recognise that you may decline to continue a therapeutic relationship. Recognise that you may decline to continue a therapeutic relationship. Under such circumstances, you can discontinue the relationship only if an Under such circumstances, you can discontinue the relationship only if an alternative health care provider is available and the situation is not an alternative health care provider is available and the situation is not an emergency one. You must inform youremergency one. You must inform yourpatient patient so that they may seek care elsewhereso that they may seek care elsewhere

The Position of the AMAThe Position of the AMA

Doctors are “not currently forced to provide a service they believe to be Doctors are “not currently forced to provide a service they believe to be unethical or immoral”. unethical or immoral”.

““The existing common law and existing codes of conduct require that a The existing common law and existing codes of conduct require that a doctor with a conscientious objection to a particular service inform the doctor with a conscientious objection to a particular service inform the patient of that conscientious objection and … ensure that the service is patient of that conscientious objection and … ensure that the service is available elsewhere”. available elsewhere”.

The proposed legislation goes beyond this: it “infringes the rights of The proposed legislation goes beyond this: it “infringes the rights of doctors with a conscientious objection by doctors with a conscientious objection by inserting an active compulsioninserting an active compulsion for a doctor to refer to another doctor who they know does not have a for a doctor to refer to another doctor who they know does not have a conscientious objection. Respect for a conscientious objection is a conscientious objection. Respect for a conscientious objection is a fundamental principle in our democratic country, and doctors expect that fundamental principle in our democratic country, and doctors expect that their rights in this regard will be respected, as for any other citizen”. their rights in this regard will be respected, as for any other citizen”.

Does Cl 8 limit the right to freedom of thought, Does Cl 8 limit the right to freedom of thought, conscience and belief? YESconscience and belief? YES

Is there a less restrictive means reasonably available to Is there a less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve the purpose that the limitation seeks to achieve? YES – the AMA Code of Ethicsachieve? YES – the AMA Code of Ethics

Does cl 8 limit the right only to such limits as can be Does cl 8 limit the right only to such limits as can be demonstrably justified in a free and democratic demonstrably justified in a free and democratic society? NOsociety? NO

Is cl 8(1) b workable? NOIs cl 8(1) b workable? NODoes cl 8(3) change any existing obligation on a Does cl 8(3) change any existing obligation on a

doctor? Unlikely, as not both EMERGENCY and doctor? Unlikely, as not both EMERGENCY and NECESSARYNECESSARY

Does cl 8(4) change any existing obligation on a nurse? Does cl 8(4) change any existing obligation on a nurse? I would say YES but the government says NOI would say YES but the government says NO

So why have cl. 8???So why have cl. 8???

What should the Legislative Council What should the Legislative Council do?do?

OMIT Clause 8OMIT Clause 8 If it fails to do so, it will be for the Supreme If it fails to do so, it will be for the Supreme

Court to interpret cl.8 in the light of the Court to interpret cl.8 in the light of the Charter, thereby making a declaration of Charter, thereby making a declaration of inconsistent interpretation.inconsistent interpretation.

What should Liberty Victoria and What should Liberty Victoria and other civil libertarians do?other civil libertarians do?

They should insist that the Legislative Council They should insist that the Legislative Council take into account the Victorian Charter when take into account the Victorian Charter when debating the Abortion bill.debating the Abortion bill.

They should abandon their call for passage of They should abandon their call for passage of the bill without amendmentthe bill without amendment

They should correct false claims that cl.8 They should correct false claims that cl.8 merely legislates the AMA Code of Ethicsmerely legislates the AMA Code of Ethics