Ok, so we all have our own biases. I can deal with that idea.
And the Federal Government’s consultation on the possibility of a federal charter of rights was hardly starting with a blank page, given that the Federal Government took a constitutional bill of rights off the table right from the begining.
And ok, Frank Brennan, self-described fence-sitter, has done Good Things in his life.
Um, that doesn’t mean he’s always right.
He was in the news on Friday, having given a speech on Thursday in which he apparently expressed these views (these words are from the Australian newspaper, not verbatim Brennan):
Victoria’s charter of rights had failed its first test by not enforcing a freedom-of-conscience clause in new laws decriminalising abortion that would have excused doctors who objected to performing abortions from referring patients to other doctors they knew did not.
First of all, that law was hardly the first test of the Victorian Charter. It’s been around for a couple of years now, and has been tested before. What Frank Brennan really means is that it’s the first time the Charter didn’t come up with the result he thought it should.
Disagreeing with the result of the application of the Charter does not mean he is biased. Saying that the Charter failed because of that one disagreement does.
What’s really important to note about the Victorian legislation that Frank Brennan is attacking is that it does not force a doctor to perform abortions against the doctor’s conscience (except in an emergency), although it does force a nurse conscientious objector to assist. Here’s section 8, which is the supposedly objectionable section:
8. 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–
(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.
(2) Subsection (1) does not apply to a practitioner who is under a duty set out in subsection (3) or (4).
(3) 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.
(4) 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.
[emphasis added]
[You can find a pdf of the legislation here, or an html link here.]
On the one hand, I do think that if you’re a doctor, the only thing that should be guiding your conscience is medical ethics. Religion should stay the hell out of it. On the other hand, if you really don’t want to perform an abortion, I probably don’t want you performing one for me.
However, I would be well within my rights to demand that you tell me who will perform one for me.
In other words, the Victorian legislation protects the rights of women. Those poor little powerful privileged Catholic doctors have no right to refuse to give me information that will allow me to get an abortion, just as they have no right to refuse to give me information about who can help with my breast cancer.
So, ok, that’s my analysis. There’s another one which says: the poor little powerful privileged Catholic doctors do have some right to their religious squeamishness, but where that’s in conflict with my right to an abortion, there’s got to be some balancing. That is done by saying that the poor little powerful privileged Catholic doctors don’t have to perform the icky abortion, but I don’t have to go trekking around to find another doctor that will, just as, if I had breast cancer and my GP couldn’t help me, I wouldn’t be expected to go trekking around to find a specialist.
Those poor little powerful privileged Catholic doctors and their powerful privileged Catholic friends, like Frank Brennan, may disagree with the outcome of that analysis – that is, they may disagree with where the balance lies there. That, I could respect.
But that’s not what they’re saying. They’re saying their rights have not been respected at all. They’re ignoring the rights of women who require abortions (medically necessary or otherwise). And they’re saying that getting the balance wrong in ONE case means that the Charter of Rights is fatally flawed.
The problem with that argument is that I can almost guarantee that, for every single rights instrument, every single person could find at least one result with which they disagreed. That’s how these things work.
Which means that if you think one situation where you disagree with the result means that there’s a fatal flaw, you’re going to think that every rights instrument is fatally flawed.
Which means that you’re going to think that there should be no rights instruments, and that certainly Australia shouldn’t adopt one!
Which means that maybe you’re not such an open-minded “fence-sitter” as you think.
Wallaby 
Good call, Jo.