CHILDREN BY CHOICE ASSOCIATION INCORPORATED

Australian abortion law and practice

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. 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.

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.

QUEENSLAND

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

Abortion is defined as unlawful in the Queensland Criminal Code (1899) under Sections 224, 225 & 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 abortion and is used as a defence to unlawful abortion:

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.

Due to the R v Bayliss and Cullen court case (see below) in 1986 and the resulting judgement, an abortion is lawful in Queensland if carried out if there is serious danger to the woman’s physical and mental health from the continuance of the pregnancy.

R v Bayliss and Cullen

In May 1985 the Queensland police under the Bjelke-Petersen government raided the Greenslopes Fertility Control Clinic which had opened in 1976 and had undergone political pressure since that time. Police interrogated women and took away 20,000 confidential patient files to be copied and studied. In June 1985, the Full Court ruled that the search warrants used by the police in the raid on the clinic were invalid, and ordered the files to be returned.

The then Director of Prosecutions, Mr Des Sturgess, made a public plea for any person dissatisfied with the Greenslopes clinic to come forward. A 21-year-old mother of three children made a complaint about a termination of pregnancy performed in January 1985. As a result, Doctors Bayliss and Cullen were charged with procuring an illegal abortion contrary to Section 224 of the Criminal Code, and inflicting grievous bodily harm.

The presiding judge at that trial R v Bayliss and Cullen (1986) was Judge McGuire. He based his ruling on the celebrated English case R v Bourne (1939) and a Victorian ruling by Justice Menhennit in R v Davidson (1969). Judge McGuire expressed the firm opinion that the R v Davidson represents the law in Queensland with respect to Sections 224 and 282. The Criminal Code s 282 provides the accepted defence to a charge of unlawful abortion under s224.

It would appear from the stance taken by Judge McGuire that a prosecution under s224 will fail unless the Crown can prove the abortion was not performed upon the unborn child “for the preservation of the mother’s life” and was not “reasonable having regard to the patient’s state at the time and to all the circumstances of the case”.

In the court proceedings, Judge McGuire stated:

It would be wrong indeed to conclude that Bourne equates to carte blanch. It does not. On the contrary, it is only in exceptional cases that the doctrine can lawfully apply. This must be clearly understood. The law in this State has not abdicated its responsibility as a guardian of the silent innocence of the unborn. It should rightly use its authority to see that abortion on whim or caprice does not insidiously filter into our society. There is no legal justification for abortion on demand.

Judge McGuire indicated that the present abortion law in Queensland was uncertain, an that more imperative authority, either the Court of Appeal or Parliament, would be required to effect changes to clarify the law. At the conclusion of the trial, Doctors Bayliss and Cullen were found not guilty on both counts. The basis for lawful abortion in Queensland currently rests on Judge McGuire’s decision. Since 1986, the law on abortion has not been tested as basically the prosecuting authorities have ‘turned a blind eye’. The Queensland Parliament has not acted to address Judge Maguire’s concern around the uncertainty of the law.

Child Destruction

Under section 313 (2), it is crime to unlawfully to assault a pregnant woman and destroy the life of, do grievous bodily harm to, or transmit a serious disease to, “the child” before its birth. The penalty for this new offence is life imprisonment. It is unclear whether section 313 (2) could be applied in the context of medical abortion. Arguably the word “unlawfully” in section 313 (2) would limit its application in that context to those medical abortions that are already prohibited under the Queensland provisions that make unlawful abortion a crime, and thus to abortions that do not satisfy the test in R v Bayliss and Cullen.

Availability: Free-standing private clinics in Gold Coast, Brisbane, Sunshine Coast, Rockhampton, Townsville and Cairns.

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

Note on R v. Bourne

In the English case, a respected London obstetrician, Dr Bourne, performed an abortion openly to terminate the pregnancy of a 14-year-old girl who had been raped. Dr Bourne was charged under section 58 of the Offences Against the Person Act (1861) which is substantially a combination of Sections 224 and 225 of Queensland’s Criminal Code. The word “unlawfully” is used in that section as it is in Queensland’s Criminal Code, and this clearly means that in some circumstances abortions must be lawful. The presiding judge, Macnaughten J, had to decide what justification(s) would render an abortion lawful. He drew upon Section 1 of the Infant Life (Preservation) Act 1929 (UK) which provides:

Any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes the child to die before it has an existence independent of its mother, shall be guilty of a felony … of child destruction …

That section provided a defence where the act which caused the death of the unborn child “was done in good faith for the purposes only of preserving the life of the mother”. This is virtually the same terminology that is used in Section 282 of the Queensland Criminal Code. Macnaughten J, in his direction to the jury, interpreted the term “preserving the life of the mother”:

Those words ought to be construed in a reasonable sense, and, if the doctor is of the opinion, on reasonable grounds and with adequate knowledge, that the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck, the jury are entitled to take the view that the doctor … is operating for the purpose of preserving the life of the mother.

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. In NSW abortion is in the Crimes Act 1900 (ss 82, 83 and 84) with penalties of up to 10 years imprisonment for the woman, the doctor 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.

To clarify the situation, Judge Levine in 1971 established a legal precedent in his ruling on the definition of lawful. He allowed that an abortion should be considered to be lawful if the doctor honestly believes 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 public hospital.

The Levine judgement has been affirmed and followed by the courts in New South Wales. Since 1973 there has been no prosecution for an unlawful abortion.

Important points summarised:

Abortion is not always unlawful in NSW
The test for unlawfulness of abortion is whether a doctor honestly believes on reasonable grounds that the abortion is necessary to preserve the woman from serious danger to her life or physical or mental health.
Mental health has been interpreted as including the effects of economic or social stress that may pertain at the time.
In NSW you do not need a referral to go to a clinic for an abortion. You can call them directly

Availability: Mostly available in private clinics in Sydney and some regional areas.

Further information: The Bessie Smyth Foundation

WESTERN AUSTRALIA

In Western Australia, provisions relating to abortion are found in the Criminal Code and the Health Act. The Acts Amendment (Abortion) Act 1998 repealed four sections of the Criminal Code and enacted a new section 199 and placed regulations in the Health Act.

Criminal Code S199

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 in Section 334 (3) :

(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 means a medical practitioner other than the one performing the abortion has provided or offered or referred the woman to counselling. Proof of consent is not defined so the Royal College of General Practitioners has prepared an information package and consent forms for doctors.

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 child has a severe medical condition. These abortions can only be performed at a facility approved by the Minister. (Section 7)

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. (Section 334 (2))

Dependent minors (girls under 16 years who are supported by at least one parent) need to have one parent informed, and given the opportunity to participate in counselling before an abortion can be performed. However she may apply to the Children’s Court for an order to proceed with an abortion if it is not considered suitable to involve the parents(s).

Section 335 of the Health Act is amended to:

Require medical practitioners to notify the Health Department within fourteen days of an abortion being performed. The prescribed form must not contain particulars from which it may be possible to ascertain the identity of the patient.
Review of provisions relating to abortion must be carried out after three years with the Minister reporting to Parliament within four years of commencement of the Act.

Availability: Majority of services are located in the Perth area, including freestanding private clinics. There is limited availability at King Edward Memorial Hospital and other public hospitals. Freestanding private clinics charge a fee to patients. There is very Limited availability of services in rural and regional areas of the state.

Further information: Family Planning Association of Western Australia. Telephone (08) 9227 6177. Association for the Legal Right to Abortion (ALRA).

SOUTH AUSTRALIA

In South Australia, the Criminal Law Consolidation Act 1935 (amended in 1969) Sections 81(1), 81 (2) and 82 outline the penalties for unlawful abortion. 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 “foetal 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 of reasonably foreseeable environment), would be posed by continuing rather than terminating the pregnancy. Section 82A(1)(a)(i).

The “foetal disability” ground permits abortion if there is a substantial risk that the child would be seriously physically or mentally handicapped if the pregnancy were not terminated and the child were born.
A second qualified medical practitioner must share the medical practitioner’s opinion that either of these grounds is satisfied. Section 82A(1)(a). The wording of the “maternal health” ground suggests a liberality of access to abortion in early pregnancy.

A conscience clause, Section 82A(5), 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. Section 82A(2).

Availability: Pregnancy Advisory Centre in Adelaide and prescribed hospitals. Pregnancy Advisory Centre provides termination of pregnancy services at no cost. No freestanding private clinics.

Further information: Pregnancy Advisory Centre

VICTORIA

In October 2008, based on the report of the Victorian Law Review Commission, the Victorian parliament passed new legislation - Abortion Law Reform Bill 2008.

R v Davidson

In the Victorian case R v Davidson (1969), Justice Menhennitt defined the meaning of “unlawful” as it appears in Section 65 of the Crimes Act 1958 (Vic.) by reference to what is lawful. He settled on the principle of “necessity” which provides that an act which would usually be a crime can be excused if:

It was done to avoid otherwise inevitable consequences
The consequences would have inflicted irreparable evil
That no more was done than was reasonably necessary
That the evil inflicted by the act was not disproportionate to the evil avoided

This principle contains two elements, one of necessity and one of proportion, which require that a pregnancy poses a certain danger to a woman’s health before its termination will be lawful.

Menhennitt J. detailed 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 has 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: Freestanding private clinics mostly based in Melbourne area, some private and public hospitals, in particular the Royal Women’s Hospital (RWH) in Carlton. RWH has a small free list.

Further information: Family Planning Victoria, Telephone: 03 9257 0100, Pregnancy Advisory Service (RWH), Telephone: 03 9344 2259.

TASMANIA

Laws relating to abortion are contained within the Tasmanian Criminal Code. The sections relating to abortion were amended in December 2001. Abortion is lawful on the basis that two medical practitioners agree that the continuation of the pregnancy would involve greater risk of injury to the physical or mental health of the pregnant woman than if the pregnancy were terminated.

134 (1) Any woman who, being pregnant, unlawfully administers to herself, with intent to procure her own miscarriage, any poison or other noxious thing or with such intent unlawfully uses any instrument or other means whatsoever, is guilty of a crime.

(2) [Section 134 Amended by No. 123 of 2001, s. 4, Applied:24 Dec 2001] Any person who, with intent to procure the miscarriage of a woman, unlawfully administers to her, or causes her to take, any poison or other noxious thing, or with such intent unlawfully uses any instrument or other means whatsoever, is guilty of a crime.

Charge: Administering poison [or using means] to procure abortion. Aiding in intended abortion.

135. [Section 135 Amended by No. 123 of 2001, s. 4, Applied:24 Dec 2001] Any person who unlawfully supplies to or procures for any other person anything whatever, knowing that it is intended to be unlawfully used with intent to procure the miscarriage of a woman, is guilty of a crime.

Charge: [Section 135 Amended by No. 123 of 2001, s. 4, Applied:24 Dec 2001] Aiding in intended abortion.

Medical termination of pregnancy

164. [Section 164 Repealed by No. 13 of 1957, s. 3 ][Section 164 Amended by No. 123 of 2001, s. 4, Applied:24 Dec 2001]

(1) Notwithstanding anything contained in section 134, 135 or 165, but subject to this section, a person is not guilty of a crime in relation to the termination of a pregnancy which is legally justified.

(2) The termination of a pregnancy is legally justified if:

(3) In assessing the risk referred to in subsection (2), the registered medical practitioners may take account of any matter which they consider to be relevant.

(4) If it is impracticable for the woman to give informed consent, the two registered medical practitioners referred to in subsection (2)(a) are to make a declaration in writing detailing the reasons why it was impracticable for the woman to give informed consent.

(5) At least one of the registered medical practitioners referred to in subsection (2)(a) is to specialise in obstetrics or gynaecology.

(6) A legally justified termination can only be performed by a registered medical practitioner.

(7) Subject to subsection (8), no person is under a duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment, including any counselling authorised by this section, to which the person has a conscientious objection.

(8) Nothing in subsection (7) affects any duty to participate in treatment which is necessary to save the life of a pregnant woman or to prevent her immediate serious physical injury.

(9) In this section, "woman" means any female person of any age, and "informed consent" means consent given by a woman where:

Availability: Two private medical clinics providing termination of pregnancy services in Hobart.

Further information: Hobart Women’s Health Centre, Telephone: 03 6231 3212, Family Planning Tasmania – Hobart, Telephone: 03 6228 5244 (Family Planning are also located in Burnie and Launceston).

AUSTRALIAN CAPITAL TERRITORY

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

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: One private clinic is available in the ACT.

Further information: Family Planning ACT, Telephone: 02 6247 3066.

NORTHERN TERRITORY

Services for termination of pregnancy are legally available in the Northern Territory up to 14 weeks gestation where either the “maternal health ground” or the “foetal disability ground” is satisfied. The legislation requires an abortion at this stage of pregnancy to be carried out in a hospital, by a gynaecologist or obstetrician. A second doctor must share the opinion that either of the grounds is satisfied.

Abortion in the Northern Territory is governed by the Criminal Code Act 1983 Sections 172, 173, 174.

Section 172 sets out when termination of pregnancy is against the law:

Subject to s. 174, any person who, with the intention of procuring the miscarriage of a woman or girl, whether or not the woman or girl is pregnant, administers to her, or causes to be taken by her, a poison or other noxious thing, or uses an instrument or other means, is guilty of a crime and is liable to imprisonment for seven years.

Section 173 outlaws aiding and abetting the procurement of abortion.

Section 174(1) outlines specific circumstances in which abortion is legal. It is lawful:

(c) for a medical practitioner to give medical treatment with the intention of procuring the miscarriage of a woman or girl if the treatment is given in good faith for the purpose only of preserving her life.

Section 174 (2), (3) and (4) provide that a person with a conscientious objection to abortion is not under a duty to assist in the operation or disposal of an aborted foetus, the burden of proving the objection lying on the person claiming it; 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”.

Any medical practitioner may lawfully terminate a pregnancy of up to 23 weeks if the doctor believes in good faith that it is immediately necessary to prevent grave injury to the pregnant woman’s physical or mental health. Any medical practitioner may lawfully terminate a pregnancy at any stage of pregnancy if the doctor believes in good faith that it is for the purpose only of preserving the pregnant woman’s life.

Availability: Services are available at the Royal Darwin Hospital or the Alice Springs Hospital.

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