• Australian abortion law and practice

    Note: if you’re looking for practical information on where abortion is available in Queensland, visit our Queensland clinics page. For clinics and abortion provider information interstate, click here.

    Abortion is the subject of criminal law in all Australian states and territories, except the Australian Capital Territory. Each state and territory has legislation prohibiting unlawful abortion.  Victoria, South Australia, Western Australia, Tasmania and the Northern Territory have legislation in place that provides a statutory explanation of when an abortion is not unlawful.  In the other states, common law interpretations of the Crimes Act or Criminal Code have had the effect of making lawful abortion available to a large number of women. Download a summary of state abortion laws here.

    Children by Choice believe abortion is an issue concerning women’s health and women’s rights, and any legislation covering the procedure should not be contained within a Criminal Code or Crimes Act.

    QLD | NSW | ACT | VIC | SATAS | WA | NT

    Summary

    Queensland & New South Wales: Abortion a crime for women and doctors. Legal when doctor believes a woman’s physical and/or mental health is in serious danger.  In NSW social, economic and medical factors maybe taken into account.

    Australian Capital Territory: Legal, must be provided by medical doctor.

    Victoria: Legal to 24 weeks. Legal post-24 weeks with two doctors’ approval.

    South Australia & Tasmania: Legal if two doctors agree that a woman’s physical and/or mental health endangered by pregnancy, or for serious foetal abnormality. Referral for counselling compulsory in Tasmania. Unlawful abortion a crime. *NB An abortion law reform bill has been passed by the Tasmanian lower house in April 2013, and is awaiting debate by the state's upper house. If passed it decriminalise abortion on request to 16 weeks gestation, and after that point if two doctors approve.

    Western Australia: Legal up to 20 weeks, some restrictions particularly for under 16s. Very restricted after 20 weeks.

    Northern Territory: Legal to 14 weeks if 2 doctors agree that woman’s physical and/or mental health endangered by pregnancy, or for serious foetal abnormality. Up to 23 weeks in an emergency.


    Queensland

    In Queensland, abortion is a crime under the Criminal Code, although case law means abortion is generally regarded as lawful if performed to prevent serious danger to the woman’s physical or mental health.

    Legislation: Criminal Code 1899, sections 224, 225 and 226.

    Abortion is defined as unlawful in the Queensland Criminal Code under sections 224, 225 and 226. Women can be criminally prosecuted for accessing abortion.

    Section 224. Any person who, with intent to procure the miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a crime, and is liable to imprisonment for 14 years.

    Section 225. Any woman who, with intent to procure her own miscarriage, whether she is or is not with child, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her, is guilty of a crime, and is liable to imprisonment for 7 years.

    Section 226. Any person who unlawfully supplies to or procures for any person anything whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman, whether she is or is not with child, is guilty of a misdemeanour, and is liable to imprisonment for 3 years.

    However, Section 282 of the Criminal Code attempts to define a lawful medical procedure, and while not relating specifically to abortion, would be used as a defence for doctors were they to be charged with unlawful abortion.

    Case law: R v Bayliss and Cullen, R v Leach and Brennan

    R v Bayliss and Cullen: A doctor and anaesthetist from Brisbane’s Greenslopes clinic were charged with providing unlawful abortion in 1985 following police raids on the clinic. They were both acquitted when the case came to trial in early 1986. Due to the ruling by Justice Maguire in the case, an abortion is considered lawful in Queensland if carried out to prevent serious danger to the woman’s physical and mental health from the continuance of the pregnancy. Unlike the 1971 Levine ruling in NSW, economic and social issues are not able to be considered when determining legality.

    R v Leach and Brennan: The only other court case in recent times regarding Queensland’s abortion law was that involving a couple in Cairns who were tried and acquitted of procuring an abortion in 2010. The result has increased uncertainty over the legality of abortion for both women and doctors.

    Further details of both these cases can be found on our Queensland abortion law page.

    Legislative Amendments: Changes to s282 of the Criminal Code

    The Cairns prosecution which began in 2009 concerned doctors to such an extent that those providing abortion in Queensland’s public health system suspended services. The public outcry following this led to the Queensland Government introducing changes to section 282 of the Criminal Code in September 2009. As stated above, section 282 of the Code does not relate specifically to abortion, but is the defence on which doctors would rely, were they charged over providing abortion. The old text of s282 is as follows:

    A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for the patient’s benefit, or upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard to the patient’s state at the time and to all circumstances of the case.

    The concern of providers was that ‘surgical operation’ was specified, and that medical abortion could not really be defined as a surgical operation. This grey area existed for many years and was repeatedly raised as a concern by doctors.

    To resolve this issue, the Government amended this section of the Code in September 2009 to allow for the provision of medication. The revised section now reads:

    A person is not criminally responsible for performing or providing, in good faith and with reasonable care and skill a surgical operation on or medical treatment of:
    a) a person or unborn child for the patient’s benefit; or
    b) a person or unborn child to preserve the mother’s life;
    if performing the operation or providing the medical treatment is reasonable, having regard to the patient’s state at the time and to all circumstances of the case.

    For detailed information of Queensland abortion law, and more info on the above-mentioned cases and legislative amendments, see our Queensland abortion law page.

    Availability

    Free-standing private clinics in Gold Coast, Brisbane, Sunshine Coast, Rockhampton, Townsville and Cairns. See our clinic locations page for more information.

    Medical abortion access is still patchy, however some of the clinics mentioned above are currently providing this service. Please call Children by Choice for more information.

    Further information: Children by Choice: 07 3357 5377 or 1800 177 725 (Queensland region only)

     

    New South Wales

    In NSW, abortion is generally regarded as lawful if performed to prevent serious danger to the woman’s mental and physical health, which includes economic and social pressures.

    Legislation: NSW Crimes Act 1900, sections 82, 83, 84.

    In NSW abortion is contained in sections 82, 83 and 84 of the NSW Crimes Act, with penalties of up to 10 years imprisonment for women, doctors and anyone who assists:

    Section 82.  Whosoever, being a woman with child, unlawfully administers to herself any drug or noxious thing; or unlawfully uses any instrument to procure her miscarriage, shall be liable to penal servitude for ten years.

    Section 83. Whosoever unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing; or unlawfully uses any instrument or other means, with intent in such cases to procure her miscarriage, shall be liable to penal servitude for ten years.

    Section 84. Whosoever unlawfully supplies or procures any drug or noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used with intent to procure the miscarriage of any woman whether with child or not, shall be liable to penal servitude for life.

    The Crimes Act specifies that abortion is a crime only if it is performed unlawfully. However, it does not define when an abortion would be considered lawful or unlawful.

    Case law: R v Wald

    Judge Levine established a legal precedent on the definition of lawful in his ruling on the case of R v Wald in 1971. He allowed that an abortion should be considered to be lawful if the doctor honestly believed on reasonable grounds that “the operation was necessary to preserve the woman involved from serious danger to her life or physical or mental health which the continuance of the pregnancy would entail” and that in regard to mental health the doctor may take into account “the effects of economic or social stress that may be pertaining to the time”. Levine also specified that two doctors’ opinions are not necessary and that the abortion does not have to be performed in a public hospital.

    The Levine judgement has been affirmed in other NSW court cases, and expanded to include a threat to the woman’s mental health that may occur following birth if the pregnancy continues. A more detailed examination of NSW case law is available here.

    Availability

    Mostly in private clinics in Sydney and some regional areas, with limited public provision. No referral necessary. See our clinic locations page for more info.
     
    More info: Family Planning NSW, telephone 1300 658 886.

     

    Australian Capital Territory

    There are no laws making specific reference to abortion within the ACT Crimes Act.

    Legislation: The Medical Practitioners (Maternal Health) Amendment Act 2002

    • Only a registered medical practitioner may carry out abortion (maximum penalty: 5 years imprisonment)
    • Abortion is to carried out in a medical facility, or part of a medical facility (maximum penalty: 50 penalty points, 6 months imprisonment or both)
    • Ministerial approval is required for the medical facility, or part of, for abortions to be performed.
    • No person is required to assist or perform in the carrying out of abortion.

    Availability

    See our clinic locations page for more info.

    Further information: Sexual Health & Family Planning ACT. Telephone 02 6247 3066.

     

    Victoria

    Legislation: Abortion Law Reform Act 2008.

    The Abortion Law Reform Act 2008 allows for the provision of abortion on request by a qualified medical practitioner, nurse or pharmacist if a woman is less than 24 weeks pregnant; after 24 weeks a second practitioner must agree the termination is in the patient’s best interest for an abortion to be lawfully performed. Abortion by an unqualified person remains a crime.

    Prior to 2008, abortion was governed by provisions in the Victorian Crimes Act and, after 1969, by case law. Under the Crimes Act 1958, ss 65 and 66, only unlawful abortions were defined. As in New South Wales and Queensland, it was left to the courts to decide under what circumstances an abortion would be lawful.

    Case law: R v Davidson

    In the Victorian case R v Davidson (1969), Justice Menhennitt defined the circumstances in which an abortion could be lawfully performed. The accused must have honestly believed on reasonable grounds that the act done by him was:

    • necessary to preserve the woman from a serious danger to her life or physical or mental health (not being merely the normal dangers of pregnancy and childbirth) which the continuance of pregnancy would entail
    • in the circumstances not out of proportion to the danger to be averted.

    For abortion to be unlawful the prosecution had to prove beyond reasonable doubt that the medical practitioner lacked this honest belief.

    The Menhennitt judgement was important because it included, for the first time in Australia, both mental and physical health risks as grounds for an abortion.

    Availability

    Mostly private clinics, however some public services are available. Most of these are located in Melbourne. See our clinic locations page for more info.

    Further information: Family Planning Victoria, telephone: 03 9257 0100 or Pregnancy Advisory Service (Royal Women’s Hospital), telephone: 03 9344 2259.

     

    South Australia

    South Australia was the first Australian state to liberalise access to abortion through legislation. Abortion is legally available under some circumstances in South Australia, although restrictions remain and there are still penalties prescribed by law for unlawful abortion.

    Legislation: Criminal Law Consolidation Act 1935 (amended 1969), sections 81(1), 81(2) and 82.

    Section 82 (A) outlines the circumstances in which a lawful abortion may be obtained. For an abortion to be legal, it must be carried out within 28 weeks of conception in a prescribed hospital by a legally qualified medical practitioner, provided he or she is of the opinion, formed in good faith, that either the “maternal health” ground or the “fetal disability” ground is satisfied.

    The “maternal health” ground permits abortion if more risk to the pregnant woman’s life, or to her physical or mental health (taking into account her actual or reasonably foreseeable environment), would be posed by continuing rather than terminating the pregnancy. The “fetal disability” ground permits abortion if there is a substantial risk that the child would be seriously physically or mentally handicapped.

    A second qualified medical practitioner must share the medical practitioner’s opinion that either of these grounds is satisfied.

    The wording of the “maternal health” ground suggests a liberality of access to abortion in early pregnancy. A conscience clause enables medical practitioners to elect not to participate in an abortion.

    The pregnant woman must have been resident in South Australia for at least two months before the abortion.

    Availability

    Pregnancy Advisory Centre in Adelaide and prescribed hospitals. Pregnancy Advisory Centre provides termination of pregnancy services at no cost. No freestanding private clinics. See our clinic locations page for more info.

    Further information: Pregnancy Advisory Centre. Telephone (08) 8347 4955. 

     

    Tasmania

    Abortion was decriminalised in Tasmania in November 2013. Under the new law, abortion is lawful on request up to 16 weeks gestation, and beyond that point with the agreement of two doctors.

    Legislation: Reproductive Health (Access to Terminations) Bill 2013.

    As well as stipulating that abortion is no longer a crime for women in Tasmania, the reforms of 2013 include provisions around conscientious objection and access zones.

    Section 6 of the Bill states that medical practitioners with a conscientious objection to abortion are not obliged to participate in termination of pregnancy procedures except in an emergency to save the woman's life or prevent serious physical injury.

    Doctors and counsellors are liable to be fined if they hold a conscientious objection to abortion and do not refer pregnant women seeking information about pregnancy options to another doctor or counsellor without a conscientious objection.

    Section 9 of the Bill prohibits threatening or harrassing behaviour, protesting, footpath interference, and the recording of persons entering an abortion facility, within 150m of a premises providing abortion, known as 'access zone' legislation.

    Availability

    There are only two private medical clinics providing termination of pregnancy services in Tasmania, both located in Hobart. See our clinic locations page for more info.

    Further information: Hobart Women’s Health Centre, telephone 03 6231 3212; Family Planning Tasmania – Hobart, telephone 03 6228 5244.

     

    Western Australia

    In Western Australia, provisions relating to abortion are found in the Criminal Code and the Health Act. Abortion is legal if performed before 20 weeks gestation, with further limitations for women under 16. 

    Legislation: Acts Amendment (Abortion) Act 1998, section 119; Health Act 1911, sections 334 and 335.

    The Acts Amendment (Abortion) Act 1998 repealed four sections of the Criminal Code and enacted a new section 199, as well as placed regulations in the Health Act.

    Criminal Code S199 stipulates:

    • Abortion must be performed by a medical practitioner in good faith and with reasonable care and skill.
    • Abortion must be justified under section 334 of the Health Act 1911.
    • Where an abortion is unlawfully performed by a medical practitioner he or she is liable to a fine of $50000.
    • Where an abortion is unlawfully performed by someone other than a medical practitioner, the penalty is a maximum of five years imprisonment. 

    The offence of ‘unlawful’ abortion may only be committed by the persons involved in performing the abortion. The patient herself is not subject to any legal sanction in Western Australia.

    Section 259 is a defence for unlawful abortion:

    A person is not criminally responsible for administering, in good faith and with reasonable care and skill, surgical or medical treatment –
    (a) to another person for that other person’s benefit; or
    (b) to an unborn child for the preservation of the mother’s life,
    if the administration of the treatment is reasonable, having regards to the patient’s state at the time and to all the circumstances of the case.

    The Health Act (Abortion) Amendment Act 1998 details when the performance of abortion is justified, under Section 334 (3), as:

    (a) the woman concerned has given informed consent; or
    (b) the woman concerned will suffer serious personal, family or social consequences if the abortion is not performed; or
    (c) serious danger to the physical or mental health of the woman concerned will result if the abortion is not performed; or
    (d) the pregnancy of the woman concerned is causing serious danger to her physical or mental health.

    Informed consent is defined under the WA legislation as whether a medical practitioner other than one performing or assisting with the abortion has provided counselling to the woman about medical risk of continuing the pregnancy, and offered opportunity of referral for counselling prior to and following a pregnancy termination or carrying a pregnancy to term.

    After 20 weeks of pregnancy, two medical practitioners from a panel of six appointed by the Minister have to agree that the mother or unborn baby has a severe medical condition. These abortions can only be performed at a facility approved by the Minister.

    No person, hospital, health institution, or other institution or service is under a duty where by contract or by statutory or other legal requirement to participate in the performance of an abortion.

    A parental notification clause means women under 16 years of age need to have one parent informed, and given the opportunity to participate in counselling before an abortion can be performed. However, young women may apply to the Children’s Court for an order to proceed with an abortion if it is not considered suitable to involve her parent(s).

    Section 335 of the Health Act was amended to ensure data collection on abortion procedures, and to ensure patients’ identities are not able to be ascertained from this data collection.

    Availability

    The majority of services are located in the Perth area.  Freestanding private clinics charge a gap/theatre fee to patients.  Very limited availability of services in rural and regional areas of the state. See our clinic locations page for more info.

    Further information:  Family Planning Association of Western Australia. Telephone (08) 9227 6177.  

     

    Northern Territory

    Services for termination of pregnancy are legally available in the Northern Territory up to 14 weeks gestation if either the “maternal health ground” or the “fetal disability ground” is satisfied.

    Legislation: Medical Services Act.

    The Northern Territory’s Medical Services Act (section 11) states that abortion is lawful:

    (a) up to 14 weeks gestation, when performed in a hospital by an obstetrician or gynaecologist, where that practitioner and another practitioner are both of the opinion that
    (i) the continuance of the pregnancy would involve greater risk to a woman’s life or greater risk of injury to her physical or mental health than if the pregnancy were terminated; or
    (ii) there is a substantial risk that, if the pregnancy were not terminated and the child were to be born, the child would have or suffer from such physical or mental abnormalities as to be seriously handicapped;

    (b) up to 23 weeks gestation, when a medical practitioner is of the opinion that termination of the pregnancy is immediately necessary to prevent grave injury to a woman’s physical or mental health; or

    (c)  at any stage of a pregnancy if the treatment is given in good faith for the purpose only of preserving her life.

    The Act also stipulates that any person with a conscientious objection to abortion is not under a duty to assist in the operation or disposal of an aborted foetus; that a medical practitioner continues to have a duty to obtain the consent of the person undergoing the abortion operation, and it must be done with professional care and in accordance with the law; and that where a girl is under 16 years old, consent must be obtained from “each person having authority in law … to give the consent”.

    Availability

    Services are available at the Royal Darwin Hospital or the Alice Springs Hospital. See our clinic locations page for more info.

    Further information:  Family Planning Northern Territory, telephone 08 8948 1044.

    Page last modified on: Tuesday, 10 December 2013

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