NSW Parliament Considers the Reproductive Health Care Reform Bill 2019

On 1 August 2019, Mr Alex Greenwich introduced the Reproductive Health Care Reform Bill 2019 (NSW) (‘the Bill’) as a private member’s bill to the New South Wales Legislative Assembly. Mr Greenwich is an independent member for Sydney, but the Bill is co-sponsored by a large number of other members of Parliament.  The other co-sponsors of the Bill are Shelley Hancock (Minister for Local Government), Brad Hazzard (Minister for Health and Medical Research) and Felicity Wilson of the Liberal Party; Trish Doyle, Ryan Park, Penny Sharpe (Deputy Leader of the Opposition), Jo Haylen and Jenny Aitchison of the Labor Party; Jenny Leong and Abigail Boyd of the Greens; Leslie Williams and Trevor Khan of the Nationals; Emma Hurts of the Animal Justice Party; and independent member Greg Piper.

Currently in NSW, there is a distinction between an ''unlawful termination" and a "lawful termination".  This distinction is determined through common law rules established in R v Wald 3 DCR (NSW) 25, where Justice Levine held that an abortion would be lawful if there were economic, social or medical grounds that a doctor could base an honest and reasonable belief that the termination would be required in order to avoid endangering the mother’s physical or mental health. The requirement of mental health includes the economic or social stress that the mother may endure during the pregnancy or after the birth of the child, as per CES v Superclinics Australia Pty Ltd [1995] 38 NSWLR 47.

Women in NSW are not currently able to procure a lawful abortion in any other circumstances.  Procuring an unlawful abortion is a criminal offence under Division 12 of Part 3 of the Crimes Act 1900 (NSW) (‘the Crimes Act’) and is punishable by imprisonment to up to 10 years. Additionally, procuring drugs, instruments or any other item with the intention to procure an abortion is punishable by imprisonment of up to 5 years.

Proposed Amendments

The Bill aims to provide a framework for lawful and unlawful terminations. Its provisions adopt principles of ready access to early stage terminations and additional oversights to current common law provisions for later stage terminations.

The Bill proposes that all requested terminations for women within and up to 22 weeks of pregnancy would be lawful if performed by a registered doctor. Past this 22 week period, a termination will only be lawful where two doctors are consulted, and where both advise that the procedure should be performed. The doctors are to consider all circumstances, including the mother's medical condition, and current and future physical, psychological and social circumstances. The addition of a second opinion in this scenario is a further safeguard in order to take into account the increased medical risks of later stage terminations.

Under the Bill, terminations are only to be performed by qualified doctors. However, the Bill provides that healthcare professionals, such as nurses, midwives and Aboriginal and Torres Strait Islander health practitioners, may assist in the procedures.

Most notably, the Bill includes a provision which expressly states that an individual who consents, assists or performs a termination on themselves is not committing an offence. The Bill also proposes that the Crimes Act be amended, substituting Division 12 of Part 3 of the Act with new provisions that criminalises termination of pregnancies by individuals who are not medical practitioners. The maximum penalty under the proposed amendment is 7 years’ imprisonment.

The Bill also includes the right to conscientious objection, where doctors will not be forced to perform or participate in terminations where it conflicts with their personal values or beliefs, unless in life-threatening emergencies. If a patient seeks termination or advice from a doctor who does object under this exception, the Bill requires the doctor to then refer or transfer the woman to another healthcare provider that they believe can provide the service and advice needed in a timely manner. Whilst, the Bill does not include penalties to non-compliance with this obligation, there may be professional disciplinary consequences.

If passed, the Bill will result in a new standalone Act regulating the practice of abortions in NSW. If the Bill is passed and commences, the Act will undergo a statutory review within 5 years of commencement regarding the operation of the Act.

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Reproductive Health Care Reform Bill 2019 (NSW), second reading speech and explanatory material - available from TimeBase’s LawOne Service

Abortion Law in Australia (Natasha Cica, Parliament of Australia, 31 August 1998)

Fact Sheet: The law on abortion in NSW (Family Planning NSW, July 2012)