Lawyers commenting on NSW Abortion Law changes

I am a member of an informal coalition of practicing lawyers and legal academics which goes by the name of the “Wilberforce Foundation”. A number of us have signed off on a press release designed to make it clear that comments from the “Australian Lawyers Alliance” supporting the proposed changes to abortion laws in NSW do not represent the views of all lawyers. The statement follows.

MEDIA RELEASE OF THE WILBERFORCE FOUNDATION IN RESPONSE TO THE SUPPORT OF THE AUSTRALIAN LAWYERS ALLIANCE FOR THE NSW ABORTION LAW REFORM BILL

The Wilberforce Foundation is a coalition of lawyers and legal academics committed to the preservation and advancement of the moral foundation of the common law, rights and freedoms. Recently, the Australian Lawyers Alliance (ALA) came out in support of the Reproductive Health Care Reform Bill. Whilst the ALA is a national organization representing lawyers, academics and other professionals dedicated to protecting and promoting justice, freedom and the rights of the individuals, it is important to note that it does not speak for all of us. Lawyers, like any member of the community, can have diverse views on morally controversial issues like abortion. The Wilberforce Foundation opposes the bill and disagrees with the ALA’s claims that there are dangerous consequences for women and doctors from the continued criminalization of abortion. 

Since the Levine ruling in 1971, the law has only become more flexible with regards to what constitutes a grave concern for the pregnant woman’s health. One has only to consider how abortion clinics operate freely throughout New South Wales to demonstrate the hollowness of any claim that the current law somehow infringes a woman’s access to abortion. The current law does, however, retain the power to punish doctors who betray the ethics of their profession, and fail to satisfy themselves that the woman has a genuine health reason for requesting an abortion. Resulting in only two prosecutions in almost 50 years, the doctors in those cases were roundly condemned for their actions, resulting in no calls to decriminalize abortion. These cases are proof that the law is working to protect women and the community.

The push to force doctors with a conscientious objection to refer for abortion is very worrying. Given that referrals are not required to access abortion, together with the availability of information available on the Internet, a doctor’s refusal to assist a woman achieve an abortion does not impede her access to it.  Mandatory referral as required in the bill has no practical function other than to unjustly infringe the freedom of health practitioners who take a different view about abortion than the state, and penalize them for it with potential disciplinary action. This is clearly inappropriate for a diverse society and sets a concerning precedent for other morally controversial health services the state may endorse in the future. 

The adoption of an abortion on demand framework up to 22 weeks raises many complex moral and medical issues. With technology reducing the age of viability for premature babies, and the rise in fetal surgery, the use of a specific gestational age as a threshold for when women can request abortion for any reason is deserving of further expert discussion. The desire to achieve uniformity with other states is hardly a sufficient reason to push through such a radical concept in this state.  

Finally, this bill does nothing to protect vulnerable women who are victims of ‘abortion coercion’. This is where intimidation is used to force a woman or girl into undergoing an abortion against her will. Recognized as an emerging phenomenon by all sides of the abortion debate, an abortion on demand framework can only work against them, providing less incentive for doctors to “enquire” into this decision. 

Law is not made just to empower the strong. The plight of women forced into an abortion, and suffering serious health consequences because of it, raise questions as to how the current laws might be improved so as to protect them. Overall, the bill raises many important issues that are deserving of a fuller exploration. The lack of genuine community consultation, and the rush to debate the bill without it, is far less than any civilized society deserves.  

The undersigned support the above statement in their personal capacities and not as representatives of the various institutions in which they serve.

F C Brohier
LLB (Hons), GDLP
Barrister 
Elizabeth Mews Chambers
22 Divett Place Adelaide SA 5000
Email: fcbrohier@elizabethmews.com.au

Michael C Quinlan 
BA LLM (UNSW) MA (THEOLST) (UNDA)
Dean, School of Law, Sydney
Professor of Law
The University of Notre Dame Australia
104 Broadway
Broadway NSW 2007
Email: michael.quinlan1@nd.edu.au

Professor A Keith Thompson
LLB (Hons), M Jur (Auckland), PhD, Dip Export, IMD (Hons), ACIA, Notary Public 
Associate Dean, School of Law, Sydney
Professor of Law
The University of Notre Dame Australia
104 Broadway
Broadway NSW 2007
Email: keith.thompson@nd.edu.au  

Professor Iain Benson
PhD (Witwatersrand.), JD (Windsor), MA (Cambridge), BA (Hons.) (Queen’s)
Professor of Law
School of Law, Sydney 
The University of Notre Dame Australia
104 Broadway
Broadway NSW 2007
Email: iain.benson@nd.edu.au

Associate Professor Neil Foster
BA/LLB (UNSW), BTh (ACT), DipATh (Moore), LLM (Newc)
Associate Professor, Newcastle Law School
Faculty of Business and Law
The University of Newcastle
University Drive
Callaghan NSW 2308
E: neil.foster@newcastle.edu.au

Adjunct Associate Professor Michael McAuley
BA LLB, M Bioethics
Adjunct Associate Professor of Law
School of Law, Sydney 
The University of Notre Dame Australia
104 Broadway
Broadway NSW 2007
Email:michael.mcauley@nd.edu,au

Nicholas Augustinos
BEc (Hons) LLB (Hons) LLM FTI
Senior Lecturer
School of Law, Sydney
The University of Notre Dame Australia
104 Broadway
Broadway NSW 2007
Email:nicholas.augustinos@nd.edu.au

Anna Walsh
PhD Candidate (UNDA),M. Bioethics (Harvard), LLM (res) (Syd), LLB (Hons), B Nurs (Hons)
Lecturer
School of Law, Sydney
The University of Notre Dame Australia
104 Broadway
Broadway NSW 2007
Email:anna.walsh@nd.edu.au

Public servant sacked for social media comments

The High Court of Australia today, in Comcare v Banerji [2019] HCA 23 (7 August 2019), upheld as “reasonable”, and not unconstitutional, the decision of the Department of Immigration and Citizenship to dismiss an employee who had made anonymous political comments about migration matters and government policies, contrary to various codes of conduct. The case provides interesting insights into the operation of the implied constitutional freedom of political communication. Many will see similarities with the dismissal of footballer Israel Folau for comments he shared about the Bible’s view of morality, but as we will see, while somewhat factually similar, the cases raise quite different issues.

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Transgender discrimination law in Australia- uncertainties

It is not uncommon to find popular assertions , in relation to the legal treatment of transgender persons, that the law requires that a person who asserts they are of a different gender to their biological sex, be allowed to use bathrooms set aside for their chosen gender, or that they have a “right” to be addressed by the pronoun corresponding to that gender. In this post I want to point out that it seems quite arguable that the law in most of Australia does not have this effect. (I will comment briefly on recent changes in Tasmania which may have, though even there, the question is debatable.)

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When is it appropriate for courts to decide religious doctrine?

I am presenting a paper today at the IVR2019 conference in Lucerne, Switzerland (a law and philosophy conference), entitled “Respecting the Dignity of Religious Organisations: When is it appropriate for Courts to decide Religious Doctrine?” For those who are interested, the paper can be downloaded here:

Social work student wins appeal against dismissal for views on sexuality

An important decision of the England and Wales Court of Appeal, The Queen (on the application of Ngole) -v- The University of Sheffield [2019] EWCA Civ 1127 (3 July 2019) has ruled that a social work student, Felix Ngole, should not have been dismissed from his course on the basis of comments he made on social media sharing the Bible’s view on homosexuality. The court says in its summary at para [5], point (10):

The mere expression of views on theological grounds (e.g. that ‘homosexuality is a sin’) does not necessarily connote that the person expressing such views will discriminate on such grounds.

The decision is a welcome one, which will hopefully provide guidance in similar situations.

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Sperm donor recognised as father

This week the High Court of Australia handed down a fascinating decision on the question as to whether a sperm donor can be recognised as the legal parent of a child born through artificial insemination. In Masson v Parsons [2019] HCA 21 (19 June 2019) the court ruled that the answer was “Yes”. While the case doesn’t directly involve “law and religion” issues, the question of parental status in assisted reproduction methods is one of great interest in religious communities, so it seems worthwhile to set out the reasoning of the court. And as I will aim to show, there is an interesting possible sideline to the court’s decision which may impact other “status” questions which arise under Australian law, which may be significant for religious views on matters such as marriage and sexual identity.

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Further reflections on the Israel Folau affair

In a previous post I commented on the events surrounding celebrity rugby player Israel Folau’s posting on social media of a meme stating that various groups of sinners, including “homosexuals”, were destined for hell unless they repented and put their trust in Jesus Christ. He was immediately threatened with dismissal by his employer, Rugby Australia (“RA”), a threat subsequently implemented through an internal tribunal finding that he was guilty of a high level breach of the RA “code of conduct”.

It seems an appropriate point to comment on recent developments and to clarify what it seems Mr Folau’s legal options are.

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