International Covenant on Civil and Political Rights (ICCPR)
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1 International Covenant on Civil and Political Rights (ICCPR) Article 18Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
2 International Covenant on Civil and Political Rights (ICCPR) Article 4 1 . In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.
3 Charter of Human Rights and Responsibilities Act 2006 Section 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 inprivate.(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.
4 Charter of Human Rights and Responsibilities Act 2006 Section 7(2)A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—(a) the nature of the right; and(b) the importance of the purpose of the limitation; and(c) the nature and extent of the limitation; and(d) the relationship between the limitation and its purpose; and(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
5 cl. 8(1) Abortion Law Reform Bill Obligations of registered health practitioner who has conscientious objectionIf 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—(a) inform the woman that the practitioner has a conscientious objection to abortion; and(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.
6 cl. 8(3) Abortion Law Reform Bill Despite any conscientious objection to abortion, a registered medical practitioner is under a duty to perform an abortion in an emergency where the abortion is necessary to preserve the life of the pregnant woman.
7 cl. 8(4) Abortion Law Reform Bill Despite any conscientious objection to abortion, a registered nurse is under a duty to assist a registered medical practitioner in performing an abortion in an emergency where the abortion is necessary to preserve the life of the pregnant woman.
8 Re Cl 8 (3)A Catholic doctor acting in good conscience to save the life of a woman and acting professionally with the requisite specialist skills and certification could reach a decision with the mother to remove a foetus or child in utero if the failure to remove the foetus or child would necessarily result in the woman’s death. The Victorian bill changes nothing in that regard.
9 Re cl. 8(3)Insofar as the Victorian bill imposes a duty beyond that, it violates the professional relationship between doctor and patient.
10 Re Cl 8 (3) Doctors in Conscience against Abortion Bill state: “The concept of an ‘emergency abortion is a clinical fiction. Almost always the management of complicated and life-threatening pregnancies need not necessitate an abortion.”
11 Ministerial Advice to the ANF Re cl 8(4)Ministerial Advice to the ANF“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 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 by clause 8. “State equal opportunity legislation already protects such nurses from discrimination where they hold a conscientious objection based on religious belief. 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 status of those with a conscientious objection.”So why have cl 8(4)?
12 s. 48 CharterNothing in this Charter affects any law applicable to abortion or child destruction, whether before or after the commencement of Part 2.
13 s. 7(3) CharterNothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person.
14 Claims by Liberty Victoria “The Abortion Law Reform Bill should be passed without amendment.”The conscientious objection clause is “consistent with the Australian Medical Association's code of ethics”.“To claim the Abortion Law Reform Bill breaks new ground or imposes unprecedented obligations on hospitals or medical staff is wrong and misleading. The bill does not do so.”
15 AMA Code of Ethics[W]hen a personal moral judgement or religious belief alone prevents you from recommending some form of therapy, inform your patient so that they may seek care elsewhere …Recognise that you may decline to enter into a therapeutic relationship where an alternative health care provider is available, and the situation is not an emergency one.Recognise that you may decline to continue a therapeutic relationship. Under such circumstances, you can discontinue the relationship only if an alternative health care provider is available and the situation is not an emergency one. You must inform yourpatient so that they may seek care elsewhere
16 The Position of the AMADoctors are “not currently forced to provide a service they believe to be unethical or immoral”.“The existing common law and existing codes of conduct require that a doctor with a conscientious objection to a particular service inform the patient of that conscientious objection and … ensure that the service is available elsewhere”.The proposed legislation goes beyond this: it “infringes the rights of doctors with a conscientious objection by inserting an active compulsion for a doctor to refer to another doctor who they know does not have a conscientious objection. Respect for a conscientious objection is a fundamental principle in our democratic country, and doctors expect that their rights in this regard will be respected, as for any other citizen”.
17 Does Cl 8 limit the right to freedom of thought, conscience and belief Does Cl 8 limit the right to freedom of thought, conscience and belief? YESIs there a less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve? YES – the AMA Code of EthicsDoes cl 8 limit the right only to such limits as can be demonstrably justified in a free and democratic society? NOIs cl 8(1) b workable? NODoes cl 8(3) change any existing obligation on a doctor? Unlikely, as not both EMERGENCY and NECESSARYDoes cl 8(4) change any existing obligation on a nurse? I would say YES but the government says NOSo why have cl. 8???
18 What should the Legislative Council do? OMIT Clause 8If it fails to do so, it will be for the Supreme Court to interpret cl.8 in the light of the Charter, thereby making a declaration of inconsistent interpretation.
19 What should Liberty Victoria and other civil libertarians do? They should insist that the Legislative Council take into account the Victorian Charter when debating the Abortion bill.They should abandon their call for passage of the bill without amendmentThey should correct false claims that cl.8 merely legislates the AMA Code of Ethics