Abortion Law Around Australia

Tuesday 1 August 2017 @ 12.16 p.m. | Legal Research

With the negativing of the Abortion Law Reform (Miscellaneous Acts Amendment) Bill 2016 [NSW] (A Private Member's Bill) in May of this year (2017), NSW now remains one of only two States where abortion is not decriminalised in Australia.

Background to the NSW Bill

The main purpose of the Abortion Law Reform (Miscellaneous Acts Amendment) Bill 2016 [NSW] (the Bill) is to remove offences relating to abortion from the Crimes Act 1900 to bring the law in this area in line with modern medical practice, expectations of reproductive health and the rights of women to autonomy over their bodies. At present, abortion is only legal in certain circumstances as interpreted by the common law. Additionally, the Bill would have also required doctors who objected to abortion to refer patients on to a doctor who would help them and to install 150-metre safe access zones around abortion clinics to prevent the harassment of staff and patients.

In brief, the amendments in the Bill would have:

  • Repealed ss 82, 83 and 84 of the Crimes Act 1900 (NSW) - criminal offences relating to abortion;
  • Consequential amendment of Criminal Procedure Act 1986 (NSW) - prosecution of the proposed repealed offences;
  • Unsatisfactory professional conduct under Health Practitioner Regulation National Law (NSW) - for failing to refer a woman wanting an abortion to a provider who will provide one; and
  • New proposed additional ss 11AA-11AG in the Summary Offences Act 1988 (NSW) - establishment of exclusion zone provisions.

MPs from both sides of the chamber were granted a conscience vote on the issue but the Bill was defeated in the Legislative Council on 11 May 2017 with 25 MP's against 14 voting against the proposed changes.

Labor MP Penny Sharpe said:

"These laws are now 116 years old, after 116 years these laws are no longer in line with community expectation or modern medical practice...Abortion should be regulated in the same way as all other surgical and medical practices. Our current law is archaic and unclear."

With proposals in two bills to reform abortion laws in QLD being withdrawn from Parliament on 28 February 2017, this leaves QLD and NSW as the only two remaining jurisdictions where abortion is a criminal offence.

Abortion Law Across Australia

Currently, in Australia, 4 States have decriminalised abortion including WA, VIC, ACT and TAS. 2 States have made abortion a medical decision for doctors, namely NT and SA. And NSW and QLD remain the only 2 States to criminalise abortion.

The relevant laws across the States are as follows:

Decrimininalised States

  • ACT - Medical Practitioners (Maternal Health) Amendment Act 2002 and Health Act 1993 - no gestational limits and only a medical practitioner can carry out the abortion;
  • TAS - Reproductive Health (Access to Terminations) Act 2013 - up to 16 weeks and must be provided by a medical practitioner; after 16 weeks, must be medically necessary;
  • VIC - Abortion Law Reform Act 2008 and Public Health and Wellbeing Amendment
    (Safe Access Zones) Act 2015
     - up to 24 weeks and must be provided by a medical practitioner; after 24 weeks, two doctors must consider it necessary in all circumstances;
  • WA - Acts Amendment (Abortion) Act 1998 and Health Act 1911 - up to 20 weeks and must be provided by a medical practitioner.

Medical Decision States

  • NT - Termination of Pregnancy Law Reform Act 2017 and associated Regulations - up to 14 weeks by one qualified medical practitioner and between 14-23 weeks, by two qualified medical practitioners;
  • SA - Criminal Law Consolidation Act 1935 - decision rests with two doctors who agree that the pregnancy poses a greater risk to the woman’s life,
    physical or mental health than termination (or); there is severe foetal abnormality.

Remaining States

  • NSW - Crimes Act 1900 - termination of pregnancy by any means punishable by 10 years in prison;
  • QLD - Criminal Code 1899 - termination of pregnancy by any means punishable by between 7-14 years in prison.

Australian Lawyers for Human Rights Representative Anna Kerr said that criminalising abortion ran against human rights obligations under the Convention on the Elimination of All Forms of Discrimination Against Women:

“Australia has an obligation to protect the rights of women and girls to access health services, including family planning and to decide freely and responsibly on the number and spacing of their children, and to have access to the information, education and means to enable them to exercise these rights."

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Sources:

Abortion Law Reform (Miscellaneous Acts Amendment) Bill 2016 [NSW] and related materials as published on TimeBase LawOne

Lawyers' Weekly Article - 12 May 2017

ABC News Article - 11 May 2017

Reproductive Choice Australia Resources - Fact Map

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