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Wednesday, 19 August 2009
Page: 5388


Senator McGAURAN (1:28 PM) —On 10 October 2008, the Victorian parliament passed the Abortion Law Reform Act—the freest abortion laws in the world. The new law has opened the floodgates to late-term abortions, right up to and including nine months. Who doubts that abortions at nine months will occur in increasing numbers as the law settles in? However, this monumental shift in the legal status of abortion was not enough for the pro-abortionists. Not content with having unfettered power over unborn babies, they sought the added power over pro-life doctors and nurses.

It should and would alarm members of the public to know that a clause was inserted into the act that took away the conscientious objection of doctors and nurses to any involvement in the act of abortion. It is worth reading the relevant section, 8(1)b, into the Hansard. It reads:

Obligations of registered health practitioner who has conscientious objection

(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.

It is clear that the conscience of the pro-life doctor or nurse has been stripped away.

Equally offensive is that the suppression of the right of doctors or nurses to exercise their conscientious objection on this very deeply held moral issue was expunged in a conscience vote of the parliament. Consider: the very parliamentarians who hold dear their right to exercise a conscience vote on this issue did not hesitate to smite the right of doctors and nurses to exercise their conscience on the same matter.

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. It read:

No one shall be subject to coercion—

a key word—

which would impair his freedom to have or to adopt a religion or belief of his choice.

They use the masculine in that case, I note.

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.

These charters, covenants and declarations have amounted to nothing as a protection for the basic rights of doctors and nurses in Victoria. Their rights have been shunted aside in a mad pursuit of an unfettered access to abortions up to and including nine months. 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. Yet the medical profession must now, by law, all be involved in the act of abortion. The legal requirement of a pro-life doctor to refer a patient to a pro-abortion doctor cannot be dismissed as inconsequential. Nor can it be argued the pro-life doctor is uninvolved in the final act. They are involved in the process and, what is more, under the law they have to be involved.

Given the passion and deep beliefs held by pro-lifers in society, section 8 is a sword to the heart of basic human rights and religious beliefs in this country. This legislation has changed the tenets of our society. It is of national consequence. It is worthy to note that the Catholic healthcare system is under the greatest threat from this new law. The Catholic healthcare system has 15 major hospitals in Victoria and is the largest non-government health provider in Victoria. Given the Catholic healthcare system’s unequivocal anti-abortion stance, section 8 is deliberately targeting the Catholic hospitals and their doctors and nurses.

It is bewildering how a vote to deny the right of conscience was ever entangled with this abortion issue in the first place, let alone it being taken as a free vote in the Victorian Parliament. Incredibly, even when presented with an amendment on the floor of the parliament to separate section 8 from the main bill and the main debate, the majority of the Victorian parliament rejected that proposal. What possibly could have been their rationale other than a disdain for pro-life doctors and nurses? In effect, the pro-life doctors and nurses have, for their moral beliefs, been banished into modern-day catacombs where they fear the consequences of a law that denies their fundamental right not to be involved in any way in an abortion. The consequence of the enforcement of this law is clearly the loss of licence to practice and the loss of the medical practitioner’s livelihood should they not adhere to this law. Therefore, it is important to note the voting patterns in the Victorian parliament when this occurred. I stress to the Senate that I am talking about one section within the main bill and not the main debate. It was right to make the main issue a conscience issue. But section 8 was different. It was not right to make that a conscience issue.

The amendment to omit section 8 was rejected by some 70 per cent of the Labor Party. This percentage is not surprising given the Labor Party is riddled inside and outside with organisations like Emily’s List that relentlessly pursue the zenith of rights for abortion, even if it means trampling over every basic right established domestically or internationally. It is a culture that has totally taken over the Labor Party. The Liberal Party has no such culture. It does not have the same culture. In the case of my party, some 70 per cent in the Victorian parliament voted against the inclusion of section 8. However, that was not enough to preserve the rights of doctors and nurses because 30 per cent of the Liberals sided with the 70 per cent of the Labor Party.

Firstly, I believe it was wrong that the state Liberals were allowed by their leadership to be divided on this issue in the first place. Secondly, I believe that section 8 did not warrant a conscience vote. Rather, it should have been a vote of the whole party. The conscience vote lay with the abortion issue as distinct from what section 8 was trying to achieve. The conscience vote lay with the abortion issue, not with section 8. Section 8 is an issue that goes to the core of Liberal Party beliefs—that is, individual freedom, choice and conscience. It is the foundation stone of our philosophy and what we hold very dear. How could any Liberal vote to strip away the conscience of doctors and nurses? It is a violation of our values. There is now a very bad law on the books in Victoria that affects us as a nation. Charters, covenants and declarations have been breached.

The action to expunge section 8 can come from either the parliament that introduced it or this parliament. Preferably, the action ought to go back to the state parliament to expunge section 8. This, of course, would require two things: strong leadership and a Liberal government. Action could also be taken at a federal level to override the state law under the Constitution. As the Senate would be well aware, there are a number of precedents, namely the Human Rights (Sexual Conduct) Bill 1994 that overrode the Tasmanian homosexual laws on the basis that it was a breach of article 17 of the International Covenant on Civil and Political Rights. That is the same as that which I say this is a breach of, article 18 of the same covenant. The remedy is to revert to what was already in place before section 8—that is, the reliance on the AMA Code of Ethics, which the AMA supports. The AMA Code of Ethics provides:

When a personal moral judgment 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 … You must inform your patient so that they may seek care elsewhere.

The essence of the AMA Code of Ethics is that the existing common law and the existing code of practice require that a doctor with a conscientious objection to a particular service must inform the patient of that conscientious objection and ensure that a service is available elsewhere. In the week prior to the introduction of the bill, the AMA stated this:

We are still concerned about the conscientious objection clause, and would like to see it amended. The Victorian Law Reform Commission stated that the AMA Code of Ethics provided a sensible balance between the needs of the practitioner and the patients, and we have asked the Parliament to amend the legislation to reflect the law.

So the difference is that between a compulsory referral and the wording under the AMA Code of Ethics—a stark difference.

We, the lawmakers, fail the medical profession and society as long as this section remains law in Victoria and we do not act to reverse it. The proper remedies are available. Preferably, it ought to go back to the parliament that introduced the law, but the remedies are also available at a federal level, as I have outlined. To state it again: the remedy is from the AMA Code of Ethics, which even the Victorian Law Reform Commission recommended. This is a bad law and it ought to be addressed.