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Tuesday, 12 November 1985
Page: 1955

Senator TATE —My question is directed to the Minister representing the Attorney-General. Has the Government received representations from members of the community, including the Catholic bishops of Australia, concerning a feared impact of the Bill of Rights on the laws relating to abortions? Are these fears well founded? Has the Government conferred with any such groups and have any decisions been taken which might help allay their misgivings?

Senator GARETH EVANS —The concerns expressed by the bishops and some others tended to focus on two main points. The first is that the inclusion of clause 9 (3) in the Bill, which at present states that the rights and freedoms set out in the Bill of Rights apply only for the benefit of natural persons, was specifically designed to offer no protection whatsoever to the unborn. I point out that Article 18 of the Bill introduced by Mr Lionel Bowen states:

Every human being has the inherent right to life and no person shall be arbitrarily deprived of life.

This follows Article 6 of the International Covenant on Civil and Political Rights which forms the constitutional basis for the Bill of Rights. It states:

Every human being has the inherent right to life . . . No-one shall be arbitrarily deprived of his life.

The effect of what the bishops were suggesting is that clause 9 (3) was included in the Bill in some way to limit the scope of operation of Article 18. Mr Bowen has both written to and, last Thursday, met with the Archbishop of Brisbane, who is the President of the Australian Episcopal Conference, and has unqualifiedly refuted that allegation. The Attorney pointed out in his letter that clause 9 (3) is intended, and always has been intended, simply to draw a distinction between individuals who, in this context, are customarily described by lawyers as `natural persons' and `artificial persons', such as companies, corporations, corporations sole and other bodies corporate. However, because of the continuing lack of clarity in people's minds about this issue and the desirability of assuaging what is clearly a concern that is based on inaccurate premises, the Government today decided to amend clause 9 (3) so that it will simply state that the Bill of Rights will not apply for the benefit of bodies corporate or politic.

The second aspect of Senator Tate's question went to the matter of privacy. The worry was that the right to privacy conferred by Article 12 may be construed to provide a right to abortion beyond what may now be permissible under existing abortion laws. The bishops' concerns here appear to arise out of the decision of the United States Supreme Court in the very famous case of Roe v. Wade some years ago which involved the privacy protection construed to exist under the United States Bill of Rights. What I think is not understood in this respect is that the American Bill of Rights is a quite separate and distinct document from the International Convenant on Civil and Political Rights on which the Australian Bill is based.

Further, as anyone who is familiar with this area will attest, the manner of interpretation of the American Bill of Rights is quite unrelated to the manner, style and substance of interpretation in Australian courts and under international law of the International Convenant. The more relevant jurisprudence is that, for example, relating not only to the Convenant but also to the similar European Convention of Human Rights of 1950. As far as the Attorney-General is aware-I can personally reinforce this-that jurisprudence does not provide any basis for the fears expressed by the bishops. It also needs to be remembered in this respect that the Bill of Rights, as presently drafted, will not have the capacity to strike down State criminal laws. Nevertheless, again I make very clear the position of the Government which is faced with continuing concerns of this kind. It has been decided, I discover from reading my brief--

Senator Durack —This is the first of hundreds of amendments you are going to make, is it?

Senator GARETH EVANS —No, this is just the one about which people are being most extravagantly irrational, no doubt with some help from the honourable senator. We are concerned to restore that debate to the high plane of rationality which one expects in a chamber of this kind.

Senator Chaney —Are you saying that the bishops are being extravagantly irrational?

Senator GARETH EVANS —No, not the bishops but their advisers and one in particular. It has been decided to include in the explanatory memorandum to which the courts refer, under recent amendments to the Acts Interpretation Act, an explicit statement that Article 12 of the Bill of Rights is not intended to modify the existing laws on abortion in Australia.

Senator Harradine —Pursuant to Standing Orders, I call for the documents quoted to be tabled.

Senator GARETH EVANS —I am only too delighted to assist in anything that will contribute to Senator Harradine's education in this respect.

The PRESIDENT —The Minister has tabled the document from which he has quoted.