2022

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

HUMAN RIGHTS (CHILDREN BORN ALIVE PROTECTION) BILL 2022

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senators Canavan, Antic and Babet)

 

 

HUMAN RIGHTS (CHILDREN BORN ALIVE PROTECTION) BILL 2022

 

OUTLINE

 

In Australia, the protection of all human life is core to the values we uphold as a nation. The purpose of this bill is to enhance Australia’s human rights protections for children by ensuring that all children are afforded the same medical care and treatment as any other person, including those born alive as a result of a termination.

 

The Bill seeks to enshrine an offence for health practitioners that contravene the duty to provide medical care or treatment to a child born alive. More explicitly, the Bill codifies the duty and conduct of medical professionals to a child born alive as no different to the professional duty owed to any other child had the live birth not been as the result of a termination.

 

Obtaining accurate figures in relation to babies born alive as a result of termination of pregnancy remains problematic due to differing guidelines between state jurisdictions and recording practices. However, state-based figures reveal that there are a number of cases where children are born alive as a result of terminations and have subsequently died.  In some states where babies are born alive during late term abortions, the infant is usually provided with palliative care but is ultimately left to die.

 

Australia has voluntarily accepted obligations under the Convention on the Rights of the Child (CRC) and the International Covenant on Civil and Political Rights (ICCPR). Denying babies born alive medical care and treatment places Australia in breach of its international obligations under the CRC and the ICCPR, which codify the right to life and adequate, quality healthcare.

 

The Bill outlines that a health practitioner registration board must deal with contraventions of the duty to provide medical care or treatment to children born alive as a result of terminations, as it would any other alleged breach.

 

Importantly, the Bill exempts mothers from prosecution.

 

The Bill includes the duty of health practitioners to report births of children born alive as a result of terminations to enable the production of statistics.

 

 

 

NOTES ON CLAUSES

Part 1 - Preliminary

Clause 1: Short Title

1.         Clause 1 is a formal provision specifying that the short title of the Act may be cited as the Children Born Alive Protection Act 2022.

Clause 2: Commencement

2.           The Bill’s provisions are to commence the day after the Act receives the Royal Assent.

Clause 3: Definitions

3.           Clause 3 defines terms used in the Bill, including:

·          Being born alive includes being born as a result of a termination.

·          Engaging in conduct is defined as doing an act as well as omitting to perform an act. This would include a health practitioner failing to provide lifesaving treatment to a child born alive.

·          A health practitioner includes any person registered or licenced to practice in medicine, nursing and Aboriginal and Torres Strait Islander health practice.

·          Professional standards or guidelines include an approved registration standard or clinical guidelines issued by a state or territory.

·          Termination includes the intentional termination of a pregnancy in any way including the administration of a drug or using an instrument or other thing.

 

Clause 4: Binding the Crown

 

4.           Clause 4 binds the crown in each of its capacities.

 

Clause 5: Extension to external Territories

 

5.           Clause 5 provides that the Act applies to Australia’s external territories.

 

Clause 6: Concurrent operation of State and Territory laws

 

6.           Clause 6 provides that the Bill is not intended to exclude or limit the operation of a State or Territory law that is capable of operating concurrently with this Bill.

 

Clause 7: Constitutional basis of this Act

 

7.           Clause 7 outlines the Constitutional basis of this Bill, which gives effect to Australia’s international obligations under Articles 6 and 24 of the Convention on the Rights of the Child; and Articles 24 and 26 under the International Covenant on Civil and Political Rights.

 

Part 2 - Children born alive are persons

 

Clause 8: Children born alive are persons

 

8.           Clause 8 specifically defines a child born alive as a person for the purposes of the law of the Commonwealth of Australia.

Part 3 - Duty of health practitioners

9.         Part 3 forms the core of the Bill. It outlines the duty of health care practitioners to provide medical care and treatment to children.

Clause 9 : Duty of health practitioners to provide medical care or treatment to children born alive as a result of terminations

 

10.       Subclause 9(1) provides that the duty owed by a health practitioner to provide medical care or treatment to a child born alive as a result of termination is no different than the duty (including a duty under the law of a State or Territory or the general law) owed to provide medical care or treatment to a child born alive other than as a result of a termination.

 

11.       Subclause 9(2) provides that the health practitioner registration board must deal with any contraventions of a duty to provide medical care or treatment to children born alive as a result of terminations.

 

12.       Subclause 9(3) provides that subclauses (1) and (2) have effect despite anything to the contrary in professional standards or guidelines that apply to health practitioners.

 

13.       Subclause 9(4) provides that medical care or treatment means treatment appropriate in the circumstances such as life-saving emergency treatment or palliative care.

 

14.       Subclause 9(5) clarifies that no consideration should be given to the fact that those circumstances outlined in subclause 9(4) were as a result of a termination. Specifically, if a health care practitioner engages in conduct that contravenes the duty to provide medical care or treatment to a child born alive as a result of termination the health practitioner registration board must treat the conduct in the same way as the board would have treated the conduct had the live birth not been as a result of the termination. These changes ensure that the inherent rights of the child are upheld and protected as codified in the UN Convention on the Rights of the Child.

 

Clause 10: Offence of contravening duty to provide medical care or treatment to children born alive

 

15.       Clause 10 establishes the offence of contravening the duty to provide medical care or treatment to children born alive. A person commits the offence if:

 

·          the person is a health practitioner; and

·          a child is born alive; and

·          the health practitioner owes a duty to provide medical care or treatment to the child; and

·          the health practitioner engages in conduct; and the health practitioner’s conduct contravenes that duty.

 

16.       Such guidelines provide clear areas of conduct, or omission of conduct, for health care practitioners.

 

Clause 11: Duty of health practitioners to report births of children born alive as a result of terminations

 

17.       Clause 11 relates to the production of statistics relating to children born alive as a result of terminations. Health practitioners present at the termination or birth have a duty to report in writing details of the birth and medical care and treatment provided after the birth without identifying the child’s mother.

 

Clause 12: Mother of child born alive not liable to prosecution

 

18.       Clause 12 clearly exempts the mother from prosecution. The purpose of this Bill is to protect the children born alive. Any decision to terminate a pregnancy may be difficult and highly traumatic for the mother. This Bill does not seek to add to the trauma, rather, protect the rights of all children, including those born alive as a result of a late-term termination of pregnancy.

 

Clause 13 : Additional operation of this Part

 

19.       Clause 13 provides that, in addition to Clause 7, Part 3 (which deals with duties of health practitioners) also has the effect it would have if a reference to medical care or treatment were expressly confined to medical care or treatment undertaken by or on behalf of a corporation to which paragraph 51(xx) of the Constitution applies.

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Human Rights (Children Born Alive Protection) Bill 2022

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

The purpose of this Bill is to protect children born alive, including as a result of terminations.

 

Human rights implications

Several human rights instruments are engaged in relation to this bill, all of which are core to Australia’s commitments and obligations:

•           Universal Declaration of Human Rights,

•           International Covenant on Civil and Political Rights,

•           Convention on the Rights of the Child.

Australia has voluntarily accepted its responsibilities under these international instruments.

The right to life is enshrined in Article 3 of the Universal Declaration of Human Rights, and Article 6(1) of the International Covenant on Civil and Political Rights.

The Convention on the Rights of the Child is also engaged by this bill, including Article 6, the right to lead a full healthy life and Article 24, which includes the provision that states a child has the right to quality health care.

The Bill enhances human rights by ensuring that the right to life and healthcare is protected for children born alive.

 

Conclusion

The Bill is compatible with human rights because it advances the protection of the human rights of the child.

 

Senators Canavan, Antic and Babet