The Risks of Lousy Lawmaking….

The risks of lousy lawmaking….
Dr Jim Wilkinson MB BS M.Hlth Law ( Syd) FFARACS  FANZCA

The Left of politics has been rejoicing at its latest “triumph” in Tasmania.  I am referring to the Reproductive Health Bill that has passed the lower house in Hobart on the votes of 13 compliant Labor MPs.  The Mercury in Hobart reported that women’s groups and “Medical bodies” had welcomed this. On closer scrutiny, the only “medical body” to declare this appears to be a family planning and abortion clinic in Hobart.

The Bill seeks to “decriminalise” abortion – a nonsense in my view, as abortion is already freely available legally in Australia where there is clear and even “fuzzy” medical or psychiatric  indication for it, if e g  in NSW, 2 doctors are of the opinion that there  is a serious risk to the life or health of the mother ( R v Wald (1971) 3 DCR 25). This ruling by Levine J referred with approval to the ruling on points of law by Justice Clifford Menhennitt in a Victorian case in 1969, R v Davidson ([1969] VR 667). There was support in precedent for the Menhennitt ruling from an English case, R V Bourne ( [1938] 3 All ER 615). About 100,000 abortions are made each year in Australia.

The 13 Labor members in the Tasmanian Lower House whose votes secured the  passage of the Bill through that chamber ( it is a tiny Parliament ) may have cause to reflect on the consequences of their  “victory”. For, while they have been busy
“decriminalising”  abortion, their apparent crusading zeal for abortion on demand has turned criminal and common law on its head, in much the same way as the Abortion Reform Act 2008 (Vic) passed by the  previous  Labor Government in Victoria. The Tasmanians have tried to go even one step further than the  Victorians in that, while the new legislation in both States compels doctors to refer a woman  to an abortionist, even  over the conscientious objections of such “ reactionaries” in society as Catholic doctors and any other  doctor with traditional Christian beliefs, in Tasmania, the new law (if it passes the Upper House and gains Royal Assent) will seek to PUNISH any Catholic or other conscientious objector  to abortion with a fine of  500 penalty units, which I understand is $32,500.

Why does this turn the law on its head? 2 reasons are obvious. Firstly, all the “reform” in Victoria means this: if a woman in Albury NSW seeks an abortion for no reason other than convenience  ( i e if there is no evidence that she will suffer any serious harm or may die of the pregnancy continues), any doctor who is party to procuring the abortion can be prosecuted and jailed under the Crimes Act 1900  (NSW). However in Wodonga  Vic (essentially in the same town – they are twin towns), if a doctor cannot ascertain any genuine medical or psychiatric reason to perform an abortion but  declines to do it or refer the  woman to some one who will, he or she has  broken the law. In Albury, damned if you do, in Wodonga, damned if you don’t.  Worse still, in Tasmania, the doctor or counsellor who declines to refer a woman for an abortion is now subject to a ruinous fine of over $30,000 because he or she has followed conscience or cannot  see any valid reason to refer to an abortionist.

–  2  –
But there is another and “unintended” consequence of the Labor Party and militant  feminists’ fervour for abortion on demand. It could see the insurance premiums of obstetricians drop enormously. My reasoning is such: The tort of negligence has blossomed in the wake of the historic case Donoghue v Stevenson [1932] AC 562; [1932] All ER Rep 1, a case that  reached the House of Lords on appeal and in which Lord Atkin ( born in South  Australia to Welsh parents and educated in Queensland) asked the famous question, “Who then is my neighbour ?”. Particularly in modern times, obstetricians have been sued for a lot of money after births in which the outcome has been  significant neurologic damage to a baby. These suits are typically brought by or on behalf of the child by a “tutor”.  A key tenet and a sine qua non of establishing negligence is that a duty of care exists between the defendant and the plaintiff ( that is, between the doctor and the baby). If no duty of care can be established, it follows that there can be no grounds for an action in negligence. As one senior judge put it, “A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to  them ”.  (Brett MR as Lord Esher in Le Lievre v Gould [1893] 1 QB 491 )
There have been huge amounts of money paid by doctors and their insurers in recent years in settlement of  alleged negligence  e g the Calandra Simpson case in NSW (c. $8 million, reduced on appeal from $14 million) . (Simpson v Diamond [2001] NSWSC 150). But what has this  to do with abortion ?
The Tasmanian and Victorian parliaments have inferred in these new laws ( In my view, I stress) that a doctor has no duty of care to a foetus. In common law, a foetus is but part of its mother until it has been born (see end note 1) . It has no legal recognition as a real person. Thus law suits against doctors for alleged birth injuries have always proceeded on the somewhat shakey basis that there is a duty of care owed to “something” that the law does not even regard as a real person, that is, a foetus in the womb or the birth canal. But the ALP members of two state  legislatures have  created a whole new legal situation here. For if a doctor in Tasmania or Victoria  is now held in law to have a duty to refer a foetus to be killed ( for that is what abortion entails), it seems to follow that the doctor has no duty to preserve the life or health of a foetus. This of  course is bizarre to the point of being obscene, But I cannot see that parliaments or feminists can have it both ways – that is, a duty of care exists or it does not – and in my view, the law cannot  be subject to the whim of the mother as  to whether she wishes to carry the child to term or abort it. I am sure that better minds than mine will argue this further. And choose wisely about where you wish to practice medicine.

–  3 –
But wait ! There is more still, and it is not good news for the politicians and bureaucrats of COAG who have been keen to control the medical and other health professions for ideological reasons. For the pro-abortionists have placed the COAG confection called AHPRA ( the Australian   Health Professions Regulating Authority) on “Death Row” by their heavy handed making of bad law. AHPRA has already proved to be a clumsy juggernaut – it  had a pure fiasco just transferring the names if doctors already registered with the old State Boards onto a new federal register. Doctors are now paying three times what they used to for their registration – to AHPRA that was meant to be cheaper and more efficient. Further, in my view, AHPRA is now a sitting duck to be shot down in flames by the State Supreme Courts and the High Court of Australia. From my general impression of the learned and proud judiciary of this nation, there is not much sympathy or tolerance for decisions of “quangoes”, tribunals etc that are the source of legally  unsound decisions. The latter are always a risk when these sorts of bodies have members of a profession other than lawyers deciding on matters that have legal implications, be they in common law, equity, statue or administrative law. The risk is high enough when a tribunal or registration/ disciplinary body has one body of law to apply. The new pro abortion laws in Tasmania and Victoria will be a virtual “lawyer’s picnic”.
With grave issues of natural justice at stake as well as an apparent dichotomy that seems to change the whole basis of an important area of common law, I can foresee that it is inevitable that matters will be referred ultimately to the  High Court and that  some of the larger States will baulk at the legal costs generated by AHPRA and will pull the rug out from this unloved and unnecessary bureaucracy. The risk is that a federal registration and disciplinary body will almost inevitably be prone to errors in law if it seeks to punish or deregister doctors because they have been accused of breaking the law in one state through actions that were legally completely proper or even required by the law of another state. If they find against a doctor   from one state in such a matter, do they then de-register him or her ? They are a national body after all, so it would appear that they must stop the doctor practising in every state. But if the doctor’s actions were legally appropriate in other states, can AHPRA then be selective in which states a doctor may be registered (e g a Catholic doctor who has in conscience refused to refer a woman for an abortion). But registration in one state and not another defeats the whole purpose of a national registration scheme ! This is a can of worms and one the State and  Federal parliaments will have to  address. It could see AHPRA abolished and the state boards made sovereign again – and that  may be no bad thing either.
End Note 1.
In Canada for example,  under section 223 of the Criminal Code of Canada,  a fetus is a “human being … when it has completely proceeded, in a living state, from the body of its mother whether or not it has completely breathed, it has an independent circulation or the navel string is severed.”

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