The following is a submission by the Coalition for the Defence of Human Life (of which Life Ministries is a member) to the Consultation Committee appointed by the Western Australian Government to consult with the community and to bring recommendations to the Government concerning its proposed human rights legislation.

The Coalition for the Defence of Human Life is made up of 15 support and advocacy bodies organized to resist schemes to terminate the lives of humans at any time between conception and natural death, but particularly at stages when humans are too young or too old or too sick to do their own organizing.

This submission was prepared on behalf of the Coalition by its Secretary, Dr E D Watt.

What are rights?

Rights are entitlements to benefits of some kind. If I have a right to some benefit, it would be unjust to deny me that benefit. For example:

Some rights are conferred by one person on another. For example, if my neighbour has lent me his lawnmower, I have a right to use it; if not, I can claim no right to use it, and he does me no injustice if he keeps it locked up.

Some rights are conferred by groups of people. For example, if the Claremont Tennis Club allows me to play tennis on their courts, then I have a right to do so; if not, I have no such right, and the club members do me no injustice if they exclude me from their courts.

Some rights are conferred by law, and may be called civil rights. For example, adult Australian citizens who are registered to vote have a right to vote in Australian elections. If I were not an adult Australian citizen, or if I had not registered, I would have no such right, and no injustice would be done to me if I were prevented from voting.

What are human rights?

Human rights are entitlements that humans are believed to have, simply by being members of the human species.

Can human rights be created by law?

No, because every human is believed to have these rights inherently, innately, not merely as a concession granted to him or her by other people or groups of people.

The law can do no more than endorse and protect human rights; it cannot create human rights.

Any right created by law cannot be a human right, a right of all humans, everywhere: it can only be a civil right of citizens within that particular jurisdiction.

Can human rights be abrogated by law?

No. If there are rights possessed by all humans, simply by virtue of their humanity, then the law at any particular place and time can neither create nor abrogate those rights. The law can either endorse and protect inherent human rights, or it can fail to protect them, or violate them.

If any person or group of people takes it upon themselves to decide which humans are to count as humans with rights and which are not, then the very idea of human rights, inherent in every human being, has been abandoned.

How is the right to life understood?

As the right not to have one’s life taken if one is “innocent”.

Is the right to life a human right?

If it is not, then there is no point in talking about a human right to anything else. “Rights” to free speech, political participation, privacy and so on can only be exercised if one is alive. And if there are some categories of humans (“the weak”, for short) who have no inherent right to their lives, and may be rightly killed by other humans (“the strong”), then “the weak” have no right to anything else either. In that case there are no such things as inherent human rights for all. There are only such civil rights as “the strong” bestow on, or withhold from, whomever they please.

The “right to life” in the Draft Bill

There is a “right” not to be “arbitrarily deprived of life” in the Draft Bill—but only after birth.

Why is the exclusion of humans before birth arbitrary and unjust?

Because humans are organisms, and their life is a continuum. Unlike an artefact, whose order is imposed on it from outside, the order exhibited in an organism is innately controlled and directed. Life does not begin at birth, but at conception, when an organism is already genetically complete—all the genetic information that will direct its development to maturity is already present—there will never be any more. A wombat foetus is just as much a wombat as an adult wombat. In the same way, a human foetus is just as much a human as an adult human. This is no more than basic biology.

If human rights are supposed to be inherent in all humans, then once you introduce any exclusions, on the basis of age, immaturity, dependence, etc., you are no longer talking about human rights at all, but merely about concessions allowed to favoured groups of humans, for the time being.

This exclusion of unborn humans, if it is allowed to stand, could be used as a precedent for other exclusions. Humans at the other end of their lives may become demented, and so totally dependent on others. In a few years, could we see an amendment deleting their right-not-to-be-killed?

The exclusion of children before birth from a right to life could also have the effect of eroding or abrogating such limited recognition and protection as they already have in law, e.g., in Criminal Code s.271, and in the common-law right to sue in respect of injuries sustained before birth at the hands of negligent doctors, motorists, etc.

Human rights as the overriding standard

If human rights are to function as the overriding standard, superior to existing law or practice, they must be the kind of rights which can be applied without exception. It follows that such rights are few in number. A right-not-to-be-raped can be applied without exception. It does not have to be “balanced” against any other considerations—benefits, preferences, expectations, habits, practices, or anything else.

By contrast, a “right to privacy” or a “right to free association”, of their nature, cannot be exceptionless. They can only be understood with reference to other considerations. For instance, a child’s “right to free association” can only be understood in relation to the parents’ legal (and moral) responsibility to safeguard the child’s welfare, to the age of the child, to the sort of people the child is associating (or may associate) with and any dangers they may pose to the child’s welfare, and to any number of other considerations.

This complexity cannot be captured in any manageably brief form of words.

Human rights and the law’s delays

Despite periodic reorganizations and the appointment of more judges, litigants in WA face long delays in having their cases heard. These delays can only increase if there is a Human Rights Act, which cannot fail to lead to a substantial increase in litigation. Increased delays will not be restricted to cases involving “human rights”.

Human rights and uncertainty in the law

A multiplicity of “human rights”, of the kind (e.g., privacy, free association) thatinescapably have to be “balanced” against other rights and other considerations, will call for an expansion of discretion in the hands of judges. They will have little or no precedent to guide them, and anyway, stare decisis does not enjoy the reverence it once did.

It is inevitable, then, that different judges will interpret these rights in divergent ways, according to their personal predilections—what else have they got to guide them? This will make it more difficult for officials, and indeed for everyone, to be sure what the law requires of them.

Recommendations:

* The Draft Bill should be abandoned. It is conceptually muddled concerning what can count as a human right. And in practice a Human Rights Act would make it harder for people to know where they stand in law. It is more likely to lead to a culture of litigation than to a “human rights culture”. And it would increase the overload on the courts.

* If the Draft Bill is not abandoned, no attempt should be made to fortify it against the ordinary procedures of statutory amendment and repeal, in the all too likely event of difficulties arising in practice.

* The law in Western Australia already permits the intentional killing of humans at two stages of their lives: the embryonic stage, when they may be destroyed in experiments, and the foetal stage, when they may be destroyed by abortion, The presence of those laws on the statute book entails, in the minds of legislators who voted for them, the rejection of any notion of human rights, that is, of rights that belong to all members of the human species simply by virtue of their humanity. Unless these laws in violation of human rights are first repealed, any attempt to pass any bill on human rights, whatever its content, would be a nonsense.

If the laws permitting abortion and embryo destruction are not repealed, and the Human Rights Bill goes ahead, all mention of the “right to life” should be amended so as to remove any restriction of that right to humans who have been born. Parliament would than have the task of attempting to justify, in the light of a Human Rights Act, leaving laws on the statute book which violate the human right which is indispensable to the exercise of all other human rights.