Repeal Section 8

One More Thing – The Victorian Pathway to a New Dark Age

A follow-up to http://www.chooselifeaustralia.org.au/life/a-new-dark-age/.  Excerpt:

Out of the horrors of Nazi Germany with its corrupt medical profession and re-defining of persons to exclude the unborn, the defective and disabled, and of course different races, came the Universal Declaration of Human Rights in 1948 when intelligent minds of various countries got together to formulate something that would help ensure that the atrocities and views and beliefs that came out of Nazism would never be repeated…would never be repeated. Implicit in this are the rights of the unborn child and clarified by the preamble to the UN Declaration of the Rights of the Child that spells out the rights of the child before and after birth.

The government of Victoria set us on this never to be repeated pathway in 2002 when it passed its own version of rights Victorian Charter of Rights and Responsibilities that includes the note that none of it will apply to abortion.

48. Savings provision

Nothing in this Charter affects any law applicable to abortion or child destruction,

How is it possible in this “country of the free” that a state government can set its own charter – based on the solemnly inspired and carefully crafted Universal Declaration – and then exclude a group of people? Jews and the defective were excluded in Germany; slaves and Negroes were excluded in the USA; North American Indians and Australian Aborigines have been marginalised and excluded – how dare we repeat history by excluding any rights of the unborn child at risk of abortion. To thumb our noses at the intelligent dedication of the people and nations that formulated the Universal Declaration is an astonishing action of ignorance and irresponsibility and – yes – selfish arrogance.

But there’s more – Victoria has spectacularly failed to uphold even the good parts of its own charter that should have ruled out Section 8 of the Abortion Law Reform Act 2008. The Charter reads:

(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.

Senator Julian McGauran in his debate speech Victoria: Abortion Law Reform Act by Wednesday, 19 August 2009 highlighted this failure  http://www.openaustralia.org/senate/?id=2009-08-19.28.1

Purportedly, the various human rights agreements Australia engages in are established to protect individual rights such as freedoms of thought, conscience, religion and belief. Therefore, it is appropriate to measure section 8 of the act against various domestic and international principles. Firstly, given the high principles which the Victorian parliament espoused when introducing the Victorian Charter of Human Rights and Responsibilities, you would expect section 8 of that act to be in breach of the charter. And it is. But the Victorian parliament failed to uphold their own charter. While section 48 of that charter expressly excludes any law concerning the unborn from its coverage, it does not abrogate the protection of any conscientious objection to abortion. To the contrary, section 14(2) of the Victorian charter spells out the principle of protection of the conscience. It reads:

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.

Secondly, section 8 falls well short of recognised international covenants and declarations. The International Covenant for Civil and Political Rights—which, I add, the Victorian Charter was based on—clearly spells out the breach of human rights, which states in article 18(1) ‘everyone shall have the right to freedom of thought, conscience and religion.’ Article 18(2) reaffirms this.

Moreover article 4(2) of the International Covenant for Civil and Political Rights sets up the rights laid out in article 18 as non-derogable rights. It concedes that other rights in the charter can be waived in national emergencies but not article 18(1)—even in national emergencies. Additionally, the Universal Declaration of Human Rights reflects the exact same beliefs in regard to conscience as the International Covenant for Civil and Political Rights.

There is something very chilling about a parliament that has legislated not only such violence upon the unborn baby but also an assault upon the preciousness of the conscience of doctors and nurses who want no part of that violence.  (Emphasis mine.)

Frank Brennan similarly writes in The Place of the Religious Viewpoint in Shaping Law and Policy in a Pluralistic Democratic Society: a case study on rights and conscience
Centre for Public Policy, University of Melbourne, 26 February 2009. Excerpt:
http://127.0.0.1:4664/cache?event_id=76369&schema_id=6&q=victorian+charter+section+8&s=FZONzSvELZj0ucwwCYip4nDAl_w

In my opinion, this was the first real test of the Victorian Charter of Human Rights and Responsibilities and it failed spectacularly to protect a core non-derogable ICCPR human right which fell hostage to a broader social and political agenda for abortion law reform and a prevailing fad in bioethics which asserts that doctors should leave their consciences at the door.

Lachlan Dunjey www.repealsection8.net.au 25 Nov 2010.