Human rights without God

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I concluded my last book Acting on Conscience with a recollection of a mass celebrated in the Dili Cathedral in 2001 by Nobel Peace Prize Winner Bishop Belo. As Director of the Jesuit Refugee Service, I was working in East Timor at the time and I accompanied Bishop Belo at the mass which was offered in thanks for the contribution by the departing Australian INTERFET forces.

At the end of the mass, Major General Peter Cosgrove spoke. The burly Australian commander was accompanied by a translator who was a petite Timorese religious sister in her pure white habit, replete with veil. Before them was the usual international media scrum which accompanies such events in countries overrun by the UN and international NGOs.

Cosgrove recalled his first visit to the cathedral three months earlier when he was so moved by the singing that he realised two things: the people of East Timor had not abandoned their God, and God had not abandoned the people of East Timor.

His words surprised me, and I knew that this speech would not be reported back in Australia. We don't do religion in public this way. It was unimaginable that an Australian military leader would give such a speech back in Australia. I am sure that our honoured guest Martha Nussbaum would concede that if Cosgrove were a US General, we would expect it. As I said in Acting on Conscience:

Here in Australia, the public silence about things religious does not mean that religion does not animate and inspire many of us. It just has a less acknowledged place in the public forum. It marks its presence by the reverence of the silence. That is why we Australians need to be so attentive to keeping politics and religion in place. Each has its place and each must be kept in place for the good of us all, and for the good of our Commonwealth.

Many citizens wanting to contribute to the shaping of law, public policy, and conversation in the public square come to the task with their own comprehensive world view. For some, that view is shaped not just by their culture and intellectual peers but also by their religious tradition and beliefs. Just because they do not often talk about such tradition and beliefs outside their own circle of family and friends does not mean that these tradition and beliefs are left at home once the individual steps into the public square.

Launching his new foundation on 'Faith and Globalisation', the recently retired British Prime Minister Tony Blair observed that his former press secretary, Alastair Campbell, was fond of saying, 'We don't do God.' Blair clarified that Campbell 'didn't mean that politicians shouldn't have faith, just that it was always a packet of trouble to talk about it.'

In the British culture, as here in Australia, Blair notes that 'to admit to having faith leads to a whole series of suppositions, none of which are very helpful to the practising politician.' He listed five suppositions:

First, you may be considered weird. Normal people aren't supposed to 'do God'.

Second, there is an assumption that before you take a decision, you engage in some slightly cultish interaction with your religion — 'So, God, tell me what you think of City Academies or Health Service Reform or nuclear power' i.e. people assume that your religion makes you act, as a leader, at the promptings of an inscrutable deity, free from reason rather than in accordance with it.

Third, you want to impose your religious faith on others.

Fourth, you are pretending to be better than the next person.

And finally and worst of all, that you are somehow messianically trying to co-opt God to bestow a divine legitimacy on your politics.

Whether or not our comprehensive world view is shaped by religious influences, it informs the development of values which the individual expresses and lives out in their own specific cultural context. From those values, one is able to articulate principles which underpin informed and considered decision making about laws, public policies and public deliberation on contested social questions.

We can practise politics, that art of compromise in the public square where laws and policies are determined in relation to the allocation of scarce resources or in relation to conflicts where there is no clear resolution either in principle or by the exercise of legitimate authority. Public policy can include the allocation of preferences by the State extended to individuals who can avail themselves of state benefits while avoiding state burdens. Laws can include the dictates of the State enforceable against individuals who fail to comply voluntarily.

Recently the Archbishop of Canterbury Rowan Williams gave an insightful address at the London School of Economics pointing out that rights and utility are the two concepts that resonate most readily in the public square today. But we need concepts to set limits on rights when they interfere with the common good or the public interest, or dare I say it, public morality — the concepts used by the UN when first formulating and limiting human rights 60 years ago. These concepts are no longer in vogue, at least under these titles.

We also need concepts to set limits on utility when it interferes with the dignity of the most vulnerable and the liberty of the most despised in our community. Addressing the UN General Assembly to mark the anniversary of the UN Declaration of Human Rights (UNDHR), Pope Benedict XVI said:

This document was the outcome of a convergence of different religious and cultural traditions, all of them motivated by the common desire to place the human person at the heart of institutions, laws and the workings of society, and to consider the human person essential for the world of culture, religion and science ... (T)he universality, indivisibility and interdependence of human rights all serve as guarantees safeguarding human dignity.

It would be a serious mistake to view the UNDHR stipulation and limitation of rights as a western Judaeo-Christian construct.

Mary Ann Glendon's A World Made New traces the remarkable contribution to that document by Eleanor Roosevelt and an international bevy of diplomats and academics whose backgrounds give the lie to the claim that any listing of human rights is a Western culturally biased catalogue of capitalist political aspirations.

The Frenchman Rene Cassin, the Chilean Hernan Santa Cruz, the Christian Lebanese Adam Malik and the Chinese Confucian Peng-chun Chang were great contributors to this truly international undertaking. They consulted religious and philosophical greats such as Teilhard de Chardin and Mahatma Gandhi. Even Aldous Huxley made a contribution. It was the Jesuit palaeontologist Teilhard who counselled that the drafters should focus on 'man in society' rather than man as an individual.

The drafters knew that any catalogue of rights would need to include words of limitation. The Canadian John Humphrey who was the Director of the UN secretariat servicing the drafting committee prepared a first draft of 48 articles. The Australian member of the drafting committee Colonel Hodgson wanted to know the draft's underlying philosophy. Humphrey refused to answer, replying 'that the draft was not based on any particular philosophy; it included rights recognised by various national constitutions and also a number of suggestions that had been made for an international bill of rights'.

In his memoirs, Humphrey recounts: 'I wasn't going to tell him that insofar as it reflected the views of its author — who had in any event to remain anonymous — the draft attempted to combine humanitarian liberalism with social democracy.'

It is fascinating to track the different ways in which the committee dealt with the delimitation of rights. Humphrey proposed that an individual's rights be limited 'by the rights of others and by the just requirements of the State and of the United Nations'. Cassin proposed only one limitation on a person's rights: 'The rights of all persons are limited by the rights of others.' The 1947 Human Rights Commission draft stayed with Cassin's one stated limitation on rights: 'In the exercise of his rights, everyone is limited by the rights of others.'

By the time the draft reached Geneva for the third meeting of the Human Rights Commission in May 1948, there was a much broader panoply of limitation on individual rights introduced, taking into account man's social character and re-introducing Humphrey's notion of just requirements of the state:

In the exercise of his rights every one is limited by the rights of others and by the just requirements of the democratic state. The individual owes duties to society through which he is enabled to develop his spirit, mind and body in wider freedom.

The Commission then reconvened for its last session at Lake Success in June 1948. They approved the draft declaration 12-0. Glendon notes: 'Pavlov, the Ukraine's Klekovkin, and Byelorussia's Stepanenko, in line with instructions issued before the meeting had begun, abstained and filed a minority report.' The Commission moved the words of limitation to the end of the draft and married the limitation to a statement about duties. Article 27 (which ultimately became Article 29) provided:

Everyone has duties to the community which enables him freely to develop his personality.

In the exercise of his rights, everyone shall be subject only to such limitations as are necessary to secure due recognition and respect for the rights of others and the requirements of morality, public order and general welfare in a democratic society.

So here in the heart of the modern world's most espoused declaration of human rights came an acknowledgment that we all have duties and not just rights, duties to the community which, perhaps counter-intuitively, enable us to develop our personalities. I doubt that phrase was coined by Eleanor Roosevelt. At the Commission, it was said that 'morality' and 'public order' were 'particularly necessary for the French text, since in English, 'general welfare' included both morality and public order'.

At one stage it was suggested that the term 'public order' was too broad, permitting the grossest breach of human rights by those committing arbitrary acts and crimes in the name of maintaining public order. The commission considered the substitution of 'security for all' for 'public order', similar to the 28th article of the American Declaration of the Rights and Duties of Man, but decided to stay with the more jurisprudentially certain European term 'public order'.

But also we have the acknowledgment that individual rights might be limited not just for the preservation of public order and for the general welfare of persons in a democratic society, but also for morality — presumably to maintain, support, enhance or develop morality in a democratic society. Sixty years later, these words of limitation might not sit with us so readily.

The draft then went from the Human Rights Commission to the Third Committee of the UN General Assembly. The Committee convened more than 80 meetings to debate the declaration which it renamed the Universal Declaration of Human Rights rather than International Declaration of Human Rights. The limitation clause was considered during three of those meetings. The limitation clause was further amended:

Everyone has duties to the community in which alone the free and full development of his personality is possible.

In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

These rights and freedoms can in no case be exercised contrary to the purposes and principles of the United Nations.

Though there was much discussion of amendments to omit references to 'morality' and 'public order', the Third Committee decided to retain these terms as to delete the mention of them 'would be to base all limitations of the rights granted in the declaration on the requirements of general welfare in a democratic society and consequently to make them subject to the interpretation of the concept of democracy, on which there was the widest possible divergence of views.'

As amended, this article was carried by 41 votes to none, with one abstention. The General Assembly then voted to adopt the universal declaration with 48 in favour, 8 abstentions and none opposed.

The Australian government is now following the UK, Ireland and New Zealand with a commitment to social inclusion giving all Australians the opportunity to:

  • secure a job;
  • access services;
  • connect with family, friends, work and their local community;
  • deal with crises; and
  • have their voices heard.

It may be in this grey area between rights and utility that social inclusion has work to do — work that was previously distributed amongst concepts such as human dignity, the common good, the public interest and public morality. Regardless of religious affiliation, individuals and community groups living under law in the State are entitled equally to connect with their local community, to deal with crises in religiously and culturally appropriate ways, and to have their voices heard unfiltered by those media outlets that transmit only the secular.

In the legal academy there is presently a great evangelical fervour for bills of rights. This fervour manifests itself in florid espousals of the virtues of weak statutory bills of rights together with the assurance that one need not be afraid because such bills do not really change anything. It has been a pleasant change for me this past year to be cast in the role of the sceptical agnostic insisting that the promised parousia of enhanced human rights protection be backed by hard evidence of tangibly different outcomes.

Being a confirmed fence sitter, I am now chairing the national consultation on human rights. Those of us with a pragmatic, evidentiary approach to the question are now well positioned given that two of Australia's nine jurisdictions (Victoria and the ACT) have enacted such bills of rights with the double assurance that nothing has really changed and that things can now only get better.

It will be interesting to hear an assessment of the socially inclusionary benefits of a bill of rights which provides lawyers and judges with greater access to the realm of policy and service delivery. I think we need more intellectual attention paid to the limits on rights.

Once we investigate much of the contemporary discussion about human rights, we find that often the intended recipients of rights do not include all human beings but only those with certain capacities or those who share sufficient common attributes with the decision makers.

It is always at the edges that there is real work for human rights discourse to do. In Cambodia last year, I met a woman concerned for the wellbeing of a handful of children who had both cerebral palsy and profound autism. There are more than enough needy children in Cambodia. It is not surprising that religious persons often have a keen eye for the neediest, not only espousing their rights but taking action for their well being and human flourishing.

Speaking at the London School of Economics on 'Religious Faith and Human Rights', Rowan Williams, the Archbishop of Canterbury has boldly and correctly asserted:

The question of foundations for the discourse of non-negotiable rights is not one that lends itself to simple resolution in secular terms; so it is not at all odd if diverse ways of framing this question in religious terms flourish so persistently. The uncomfortable truth is that a purely secular account of human rights is always going to be problematic if it attempts to establish a language of rights as a supreme and non-contestable governing concept in ethics.

No one should pretend that the discourse about universal ethics and inalienable rights has a firmer foundation than it actually has. Williams concluded his lecture with this observation:

As in other areas of political or social thinking, theology is one of those elements that continues to pose questions about the legitimacy of what is said and what is done in society, about the foundations of law itself. The secularist way may not have an answer and may not be convinced that the religious believer has an answer that can be generally accepted; but our discussion of social and political ethics will be a great deal poorer if we cannot acknowledge the force of the question.

Once we abandon any religious sense that the human person is created in the image and likeness of God and that God has commissioned even the powerful to act justly, love tenderly and walk humbly with their God, it may be very difficult to maintain a human rights commitment to the weakest and most despised in society. It may come down to the vote, moral sentiment or tribal affiliations. And that will not be enough to extend human rights universally.

In the name of utility, the society spared religious influence will have one less impediment to limiting social inclusion to those like us, 'us' being the decision makers who determine which common characteristics render embodied persons eligible for human rights protection. Nicholas Wolterstorff says, 'Our moral subculture of rights is as frail as it is remarkable. If the secularisation thesis proves true, we must expect that that subculture will have been a brief shining episode in the odyssey of human beings on earth.'

Liberty of Conscience

In his 1789 Letter to the Quakers, George Washington said, 'I assure you very explicitly, that in my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness: and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard for the protection and essential interests of the nation may justify and permit.'

Professor Martha Nussbaum's recent book Liberty of Conscience provides a rich textured treatment of the place of religion in the public square. In her characteristic writing mode, she shares personal anecdotes — this time her conversion from Christianity to Judaism on the occasion of marriage; she treats deftly the classics, and then delves into philosophical reflection on US jurisprudence not all of which travels well across the Pacific.

In this book she reflects on the agonising dilemma of Sophocles' Antigone when the State in the person of her uncle Creon has announced that she may not bury her brother, killed attacking the city. Her religion dictates that she must bury her brother. She speaks of Creon's alarming rigidity:

He has defined public policy in a way that favours the interests of most people in the city. In the process, however, he has imposed a tragic burden on one person. The great Athenian statesman Pericles boasted that fifth century democratic Athens did things better, refusing on principle to put people in such dreadful predicaments. Athens, he said, pursues the good of the city, but not by requiring its citizens to violate the 'unwritten laws' of their religions.

 

She nicely posits the Lockean position of state neutrality whereby 'the state is free to regulate matters concerning property or health or safety even when they bear on religious organisations — so long as it does so impartially'19 against the more subtle treatment of the 17th century American Roger Williams, founder of Rhode Island, who espoused religious accommodation with the declaration, 'It is the will and command of God that (since the coming of his Sonne the Lord Jesus) a permission of the most paganish, Jewish, Turkish, or antichristian consciences and worships, bee granted to all men in all nations and countries'.

Nussbaum sets down six normative principles, which I find useful in scrutinising laws and policies that impact on the free exercise of religion and on the broader freedom of conscience. I will take as a case study s.8(1)(b) of the recently enacted Abortion Law Reform Act here in Victoria. The issue is not the legality or desirability of abortion on demand. The issue is whether the law ought provide for compulsory referral by a conscientious objector. S. 8(1)(b) provides:

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 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.

Justice Scalia has pursued the Lockean position on the US Supreme Court, as have groups such as Liberty Victoria in pursuing the enactment of the recent Victorian abortion law including this novel clause stipulating compulsory referral by a conscientious objector. The Williams approach finds expression in the judgments of Justice O'Connor on the US Supreme Court and in the criticisms offered by some of the faith based groups critical of clause 8(1)(b) of the Victorian abortion law. The supporters of clause 8 would be surprised to find they are ad idem with Justice Scalia who has said, 'we have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate.'

The Lockean position is the minimal protection provided by the Australian Constitution for freedom of religion. In The Church of the New Faith v The Commissioner of Pay-roll Tax (Victoria). Mason ACJ and Brennan J wrote that 'canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion.'

Australia is a signatory to the International Covenant on Civil and Political Rights. The terms of that Covenant provide a convenient benchmark for most individuals and groups who espouse human rights. The freedom of conscience and religion is one of the few non-derogable rights in the Covenant. This means that a signatory may not interfere with the exercise of the right even during a national emergency — whereas other rights in the Covenant can be cut back during times of public emergency which threatens the life of the nation — but only to the extent strictly required by the exigencies of the situation and provided that that cut back applies in a non-discriminatory way to all persons.

Furthermore the freedom or thought, conscience and religion is one of the few rights, which can be confined only if it be necessary 'to protect public safety, order, health, or morals or the fundamental rights and freedoms of others'.

Let's first consider Nussbaum's principles:

1. The equality principle: all citizens have equal rights and deserve equal respect from the government under which they live
2. The respect conscience principle: — providing protected space within which citizens may act as their conscience dictates. All citizens enter the public square on equal conditions
3. The liberty principle: respect for people's conscientious commitments requires ample liberty — and not just a regime of equal constraint in which nobody has much religious freedom
4. The accommodation principle: sometimes some people (usually members of religious minorities) should be exempted from generally applicable laws for reasons of conscience.
5. The non-establishment principle: the state does not operate so as to set up and in-group and an out-group.
6. The separation principle

Nussbaum concedes that there may be a need for religion to bear some burdens 'if the peace and safety of the state are really at stake, or if there is some other extremely strong state interest. But it seems deeply wrong for the state to put citizens in such a tragic position needlessly, or in matters of less weight. And often matters lying behind laws of general applicability are not so weighty; sometimes they come down to a mere desire for homogeneity and an unexamined reluctance to delve into the details of a little known or unpopular religion'.

My case study on rights and conscience will include a comparison of the UK and Australian responses to compulsory referral clauses placed in laws dealing with the delivery of medical services in morally contested fields. My argument is that the UK has more of a culture and architecture for discussion of rights and their limits than we do, and that is because they have had a Human Rights Act for 10 years and they have been subject to human rights jurisprudence from Strasbourg for decades.

When Lord Joffe's Assisted Dying for the Terminally Ill Bill was first drafted in the United Kingdom it contained two clauses similar to section 8 of the Victorian Abortion Law Reform Act 2008. Clauses 7(2) and (3) of the original Joffe Bill imposed a duty on physicians who invoked their right to conscientiously object, to 'take appropriate steps to ensure that the patient is referred without delay to a physician who does not have such a conscientious objection'. The Westminster Parliament's Joint Committee on Human Rights remarked:

3.14 We consider that imposing such a duty on a physician who invokes the right to conscientiously object is an interference with that physician's right to freedom of conscience under the first sentence of Article 9(1), because it requires the physician to participate in a process to which he or she has a conscientious objection. That right is absolute: interferences with it are not capable of justification under Article 9(2).

3.15 We consider that this problem with the Bill could be remedied, for example by recasting it in terms of a right vested in the patient to have access to a physician who does not have a conscientious objection, or an obligation on the relevant public authority to make such a physician available. What must be avoided, in our view, is the imposition of any duty on an individual physician with a conscientious objection, requiring him or her to facilitate the actions contemplated by the Act to which they have such an objection.

3.16 In the absence of such a provision, however, we draw to the attention of each House the fact that clauses 7(2) and (3) give rise in our view to a significant risk of a violation of Article 9(1) ECHR.

The UK bill was accordingly amended to provide that 'No person shall be under any duty to refer a patient to any other source for obtaining information or advice pertaining to assistance to die, or to refer a patient to any other person for assistance to die under the provisions of this Act' (cl. 7(3)). Under the revised UK provision, the doctor with a conscientious objection would have no additional legal duty other than 'immediately, on receipt of a request to do so, transfer the patient's medical records to the new physician'. (cl. 7(6))

When confronted with cl 8 of the Abortion Law Reform Bill, it was not surprising that the Victorian Scrutiny of Acts and Regulations Committee drew attention to the equivalent attempted provision in the UK, the response by the UK Committee, and the amendment proposed in the UK Parliament. The Victorian committee noted:

Clause 8 sets out the obligations of health practitioners who hold a conscientious objection to abortion, including (in clause 8(1)(a)) an obligation to refer women who request an abortion to another practitioner who has no conscientious objection. The Committee observes that some practitioners may hold a belief that abortion is murder and may regard a referral to a doctor who will perform an abortion as complicity in murder. The Committee therefore considers that clause 8(1)(a) may engage the Charter right of such practitioners to freedom of belief.

The Committee rightly observed that the compatibility of this clause with the Charter 'depends on its satisfaction of the test in Charter s. 7(2), including whether or not there are less restrictive means available to achieve the purpose of the clause'. The Committee then very properly referred two questions to Parliament for its consideration:

1. Whether or not clause 8(1)(a), by requiring practitioners to refer patients to doctors who hold no conscientious objection to abortion, limits those practitioners' freedom to believe that abortion is murder?

2. If so, whether or not clause 8(1)(a) is a reasonable limit on freedom of belief according to the test set out in Charter s. 7(2) and, in particular, whether or not there are any less restrictive means available to ensure that women receive appropriate health care?

No credible answers were provided by Parliament. The questions could only have been answered, Yes to the first and No to the second.

Victoria is the first Australian state to have legislated a Charter of Human Rights and Responsibilities Act. It reproduces many of the rights in the ICCPR including the freedom of thought, conscience, religion and belief (s.14). Unlike the ICCPR, the Victorian Charter does not specify that any rights are non-derogable. And all rights can be restricted for reasons other than the need 'to protect public safety, order, health, or morals or the fundamental rights and freedoms of others'.26 Section 7(2) specifies the justified limits on rights:

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.

 

Helen Szoke, Chief Conciliator/CEO, Victorian Equal Opportunity and Human Rights Commission purported to answer the questions posed by the Scrutiny of Bills committee when she wrote to The Australian on 1 October 2008 stating:

The purpose of the charter is to provide a framework to help us balance competing rights and responsibilities. Freedom of conscience is not the only issue at stake here, and to suggest so is to simplify an extremely complex issue. In this case, a doctor's right to freedom of conscience needs to be balanced with competing considerations such as a patient's right to make a free and informed choice. Sometimes limits on human rights are necessary in a democratic society that respects the human dignity of each individual.

Suffice to say that this simple solution is in stark contrast to the reasoning and conclusion reached by the UK Parliament in its consideration of a similar clause.

The various codes of ethics for obstetricians and gynecologists have now for some years emphasized the patient's right to receipt of service over and above the conscientious objection of the health practitioner. This has not been the case for the general code of ethics for the medical profession generally. Here in Australia, the AMA Code of Ethics provides:

When 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 your patient so that they may seek care elsewhere.

The AMA thought cl.8(1)(b) unwarranted because it departed from the existing AMA Code of Ethics. AMA Victoria advised its members in these terms:

Last week, AMA Victoria met with Minister Andrews' adviser and Department of Human Services legal counsel to seek their understanding of the clause, and we have also sought independent legal advice. The government and the advice confirmed that clause 8 changes the existing law. The existing common law and existing codes of practice 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 existing law and practice also provide that doctors have a duty to assist in an emergency. AMA Victoria supports the existing law and ethical obligation to properly inform patients and ensure that services are elsewhere available.

The Victorian Law Reform Commission took a similar view, noting that the AMA Code of Ethics 'provides an appropriate balance between the needs of the practitioner and the patient' (p. 115).

Dr Travis, President, AMA Victoria, had written to the Premier on 1 September 2008, stating:

The Bill 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.

The AMA asked the Premier to consider removing clause 8 and rely on the existing law, or amend the section to reflect the existing law. In the week prior to the introduction of the bill into the upper house, the AMA once again stated:

 

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 practitioners and patients, and we have asked the Parliament to amend the legislation to reflect the existing law.

 

That remained the AMA's position right through the debate in both houses of parliament. It is still the AMA's position. In trying to avoid the draconian effect of the anti-conscience clause in the Victorian law, the AMA has now provided its members with a template letter for conscientious objectors stating:

Due to Dr [INSERT NAME]'s moral and ethical beliefs, s/he is not able to offer you abortion services.

We do not wish patients who are seeking these services to suffer embarrassment or emotional upset, so we want to make this position clear.

We ask that you respect Dr [INSERT NAME]'s beliefs by not requesting abortion services from him/her, as they are against his/her conscience.

To date there has been no challenge or test case on the issue. The abortion law provides no penalty for non-compliance with the compulsory referral provision, though presumably the Medical Practitioners' Tribunal would have power to discipline or even strike off practitioners for non-compliance. Before such action was taken by the tribunal, it, being a public authority for the purposes of the Charter, would need to ensure that it did not act in a way that is incompatible with the human right of freedom of conscience.

Given the tribunal's latitude for action, it would need to establish that in striking off a member for conscientious objection it could not reasonably have acted differently or made a different decision This highlights the complete unworkability and incoherence of such a compulsory referral clause for a medical procedure that requires no referral in a jurisdiction which boasts a Charter providing for freedom of conscience.

The novel clause 8(1)(b) was all the more surprising given that the Victorian Law Reform Commission in its report on abortion law reform wrote:

8.38 Our terms of reference require us to ensure the maintenance of current clinical practice standards. If legislative provision is made for people who have a conscientious objection to providing abortion services, the content of any new law is best guided by the principles contained in the AMA Code of Ethics. That code requires medical practitioners to inform patients of their refusal. The code also requires practitioners to provide women with sufficient information so they may seek and find treatment elsewhere. This simple rule provides an appropriate balance between the needs of the practitioner and the patient.

By requiring a compulsory referral (a requirement additional to the AMA Code of Ethics), s. 8 works interference on the right to freedom of thought, conscience and belief of a medical practitioner with a conscientious objection to abortion. The minister introducing the bill provided no assessment of this clause in light of the Charter of Rights and Responsibilities.

No fair-minded assessment of the clause could render a decision that the interference with the right to freedom of thought, conscience and belief had been worked so as to provide the least 'restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve'. Thus the right is not subject under law only 'to such reasonable limits as can be demonstrably justified in a free and democratic society'. Furthermore, the clause is not only more intrusive on the right than need be, it is unworkable.

On 9 September 2008, Liberty Victoria issued its only press release on the bill stating, 'The Abortion Law Reform Bill should be passed without amendment.' Then writing in The Age on 24 September 2008, Anne O'Rourke, the vice president who had the public carriage of the issue for Liberty Victoria claimed that the conscientious objection clause was 'consistent with the Australian Medical Association's code of ethics'.

She went on to say, '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.' Her assertion was contrary to the government's own legal advice to the AMA.

Liberty Victoria's public position was in stark contrast to the position taken by the AMA. As already noted above, in his letter to the Victorian Premier, Dr Doug Travers, the President of the AMA (Victoria Branch) pointed out that doctors are 'not currently forced to provide a service they believe to be unethical or immoral'. He acknowledged that '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'.

But he pointed out that 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'.

Julian Burnside QC, president of Liberty Victoria, wrote to members of parliament on 8 October 2008 purporting to resolve the conflict of rights between the patient desirous of an abortion and the conscientiously objecting doctor. Burnside told the politicians, 'The tension can be resolved either by requiring the objecting doctor to refer the patient in a manner which facilitates her right, or by permitting the doctor to frustrate or delay her right by refusing to refer her to a doctor who does not object on grounds of conscience.' But no referral is required for an abortion in Victoria. Could not the tension be resolved by simply requiring the doctor to comply with the existing AMA code of ethics?

According to Burnside, there was 'a real risk that the patient's right will be defeated: some patients may not have the sophistication or the resources to find a doctor who does not object on grounds of conscience, and this is more likely to be the case, where the patient is young or lives in a remote or regional area with limited medical facilities.' Burnside did concede, 'There is no doubt that the wording is awkward. But the intention is clear.'

He said, 'In my view the Clause may be complied with if a doctor with a conscientious objection simply refers his or her patient to a public hospital or to a recognized independent pregnancy advice service'. He insisted that it 'is not a requirement that the practitioner name another doctor with whom they know they have a conscientious disagreement.' And yet this is precisely what the clause requires.

The highly respected Neil Young QC concluded that the drafting of cl 8(1)(b) 'appears to go beyond' the AMA code of ethics. He pointed out that though under the AMA code of ethics, 'the conscientious objector is required to provide information', 'the objector is not required to ascertain or know the views of other practitioners or to refer the woman to a specific practitioner who does not have a conscientious objection to aboriton'.29 Young expressed the view that 'clause 8(1)(b) cannot be interpreted or applied consistently with the human right set forth in s.14 of the Charter' (the right to freedom of thought, conscience, religion and belief).30 Young concluded that cl 8(1)(b) cannot be justified by recourse to s 7(2) of the Charter.

Was a less restrictive means available? Yes. As Young says, 'cl 8(1)(b) could have adopted the language used in the AMA Code of Ethics, which provides a satisfactory and reasonably available alternative. Other less coercive means can be postulated, such as the maintenance of a public register of practitioners who hold no conscientious objection to abortion'.

None of this analysis was done by the Parliament, nor by the advocacy groups like Liberty Victoria, nor by the statutory bodies such as the Equal Opportunity Commission.

The confusion over what was required by way of referral was highlighted by Candy Broad who had introduced an earlier measure for abortion law reform. She told parliament:

Mr Hall raised, at clause 8(1)(b), which states: refer the woman to another registered health practitioner ... I am advised and I fully expect the minister who has carriage of the bill in this house, Minister Jennings, will confirm that 'refer' is to be taken to have its plain English meaning; therefore it means 'advice' and does not have a more technical meaning in this context.

Then Mr Jennings, Minister who had the carriage of the bill in the upper house when asked to define 'referral' said:

The effective referral that is being required is to an equivalent medical practitioner, which is very consistent with what has been discussed in connection with this bill and is consistent with the college and the Australian Medical Association's guidelines and ethical framework that covers this field, and so those concepts are not new. The difference is between the recommendation, which is clear and unequivocal in terms of the code of ethics that says you should do something, and this legislation which says you must do something.

Why impose a legal requirement that the doctor with a conscientious objection to abortion provide a referral when the service can be, and usually is, provided without a referral? And when the proponents then say that there is no obligation to refer, but only to advise?

Burnside QC conceded that cl .8 was awkwardly worded and not clear. But it is clear on one point. The conscientiously objecting medical practitioner is legally obliged to '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 not enough simply to give information about the existence of a hospital or a service. The doctor must REFER the patient to another health practitioner known (and not just suspected) not to have a conscientious objection.

Is there a less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve? Burnside implied that cl.8 does nothing more than implement the AMA Code of Ethics. The AMA thinks cl.8 goes well beyond the Code. Why not stick with the AMA Code of Ethics, while ensuring better information in country towns about the working of the internet, and the existing availability of abortion services provided with maximum encouragement and minimal red tape?

Does cl 8 limit the right to freedom of conscience only to such limits as can be demonstrably justified in a free and democratic society? NO. It limits the right with a completely unworkable regime which overreaches the more practical alternative. It is also unworkable because it does require all Victorian medical practitioners to KNOW their colleagues' view on when they would perform an abortion.

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. The outcome was the opposite of that reached in the UK, and with much thinner, more ideological reasoning.

Groups such as Liberty Victoria provided no coherent answers. Academic experts on the Charter largely remained silent. The Equal Opportunity and Human Rights Commission simplistically dismissed freedom of conscience. Given that the referral clause was both unnecessary, unworkable, and more intrusive than state notification of available abortion providers, one can only conclude as did Justice Kennedy in the leading US gay rights decision Romer v Evans: the clause 'seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.'

I daresay most civil libertarians and Charter advocates are little worried by this first test of the Victorian Charter because they share the view of Julian Savulescu that doctors' consciences should be left at the door in the name of patient autonomy. Doctors are simply there to provide a service as if they are automatons. In his recent article 'Conscientious objection in medicine', Savulescu commences with a literary reference — not to Sophocles' Antigone but to Shakespeare's Richard III. When Richard III roused from his dream he made his declaration:

Let not our babbling dreams affright our souls: conscience is but a word that cowards use, devised at first to keep the strong in awe: Our strong arms be our conscience; swords our law.

Savulescu quotes only the sentence: 'conscience is but a word that cowards use, devised at first to keep the strong in awe'. Here is the context. During Richard's dream the night before going into battle, he confronted the eleven ghosts of those he had callously murdered including the Ghost of Prince Edward, son to King Henry VI who proclaimed 'Let me sit heavy on thy soul to-morrow! Think, how thou stab'dst me in my prime of youth. At Tewksbury: despair, therefore, and die!' And the Ghost of King Henry VI who proclaimed 'When I was mortal, my anointed body by thee was punched full of deadly holes. Think on the Tower and me: despair, and die! Harry the Sixth bids thee despair, and die!'

Richard III: hardly the model for the discerning medical practitioner; and his quote on conscience hardly the literary quote likely to evince sympathy for the primacy of conscience, a non-derogable human right. For those who want swords to be their law, there is every reason to view conscience as a word used only by cowards. It is those sorts of people who demand that conscience be left at the door. It is only by discarding conscience at the door that one can argue: 'Doctors who compromise the delivery of medical services to patients on conscience grounds must be punished through removal of licence to practise and other legal mechanisms'.

During last year's debate on the compulsory referral clause here in Victoria, I wrote in Eureka Street: 'Unless we engage in reasoned discussion about the process and substance of the offending clause 8 of the bill, the outcome will be a law shoddily drawn, overbroad in application, and unworkable — bearing all the hallmarks of unreasoned lawmaking ... It will be the silent civil libertarians who will be complicit in the Victorian Charter failing its first real test. The Charter will be seen to be not only weak and manipulable. It will be stillborn.'

Martha Nussbaum's concluding chapter in Liberty of Conscience is titled with a question: 'Toward an Overlapping Consensus?' She makes the point that laws do matter as 'good laws and institutions set limits on people's ability to act on their intolerant and inegalitarian views'. She describes Roger Williams' challenge to the new colonies: 'that they find, and learn to inhabit, a shared moral space, without turning that space into a sectarian space that privileges some views over others'.

That challenge was not met when the Victorian Parliament, academy and civil society endorsed an unworkable, unprincipled, and useless compulsory referral clause trampling the conscientious beliefs of some medical practitioners with no workable benefit being accorded their patients.

We need to do better if faith communities and minorities are to be assured that a Victorian style charter of rights is anything but a piece of legislative window dressing which rarely changes legislative or policy outcomes, being perceived as a device for the delivery of a soft left sectarian agenda — a device which will be discarded or misconstrued whenever the rights articulated do not comply with that agenda.

Nussbaum finds hope in John Rawls' notion of overlapping consensus whereby those holding different religious and secular comprehensive doctrines can live together on terms of equal respect 'agreeing to share a 'freestanding' ethical conception in the political realm, and agreeing, at the same time, to forgo the search for the dominance of any one comprehensive doctrine over the others'.

Those who think that conscience is but a word cowards use are unlikely to forgo the search for dominance of their comprehensive doctrine over others. We still have much more work to do in Australia if we are to take seriously in law and policy Nussbaum's 'respect conscience principle' and her 'accommodation principle'.

Our protection of human rights for all will be much enhanced if we are better able to provide 'protected space within which citizens may act as their conscience dictates' and if we can acknowledge that 'sometimes some people (usually members of religious minorities) should be exempted from generally applicable laws for reasons of conscience'.


Frank BrennanThis talk was presented by Father Frank Brennan SJ AO during the Values and Public Policy Conference at the Centre for Public Policy, University of Melbourne, 26 February 2009.

 

 

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Existing comments

Surely hard to refute this well researched and reasoned view. Hopefully the law will be improved.
David O'Halloran | 02 March 2009


My interest is in the provision of non-medical care of those with serious mental illness. This is a group that continuously falls off agendas! You do not mention such groups. People in this group are largely left to the state for care and compassion. Governments, neutral on religion and theology, are forced to work from a purely economic and statistical point of view.

So much so, that sufferers fail to attract even the financial care they need.

Abortion and the East Timorese are certainly deserving of community care - but what about the thousands and thousands of Australians who are lost in the mental "health" system? I look forward to your comments.
Jennifer Raper | 04 March 2009


Nussbaum had a lecture on youtube, about Hecube finding that her son had been murdered by a robber. I asked why her daughter was of less value (her daughter had been led off to death by Ulysses, as a sacrifice to the gods for winning the battle of Troy). I asked whether this meant that women were less important that man. Or did it mean that men were sacrifices to the god of war. I still don't know the answer as the you-tube post was taken down.
richard | 27 March 2009


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