SA Termination of Pregnancy Bill Passes Through Council

Thursday 10 December 2020 @ 12.08 p.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

On 2 December 2020 the Termination of Pregnancy Bill 2020 (SA) (the Bill) passed through the SA Legislative Council (the Council) with amendments. The Bill was introduced into the Council on 14 October 2020 as a private members’ Bill to be decided by conscience vote, rather than a vote on party lines. The Bill was introduced and read a first time in the Assembly on 3 December 2020. In general terms, the Bill reforms the law relating to pregnancy terminations, regulates the conduct of health practitioners in relation to pregnancy terminations and makes related amendments to the Criminal Law Consolidation Act 1935 (SA) and the Intervention Orders (Prevention of Abuse) Act 2009 (SA).

Overview of the Bill

The Bill is viewed by the Attorney-General, according to her media release of 14 October 2020, as a move "to modernise South Australia’s abortion laws, ensuring the procedure is treated as a health issue, not a criminal one."

The laws proposed by the Bill would remove outdated provisions in the current system and bring SA’s laws into line with the rest of Australia. The proposed reforms are based on recommendations made by the South Australian Law Reform Institute (SALRI) and have, according to the Attorney-General, been the subject of extensive consultation.

The key change to the law proposed by the Bill is the removal of abortion entirely from the criminal law and treating it "on the understanding" that it is a medical procedure which should be treated like any other "health issue.”

The Minister for Human Services, Michelle Lensink, has said in the second reading speech, that it was time the state’s abortion laws were modernised:

“In this day and age, it’s completely outdated that abortion is still under criminal law,... These days, there is overwhelming public support to decriminalise abortion and it makes sense given women have done nothing wrong...”

Additionally, the Bill removes the current requirement that a woman seeking to terminate a pregnancy requires approval from two medical practitioners, according to the Attorney-General:

“Under the proposed laws, an abortion can be performed by one medical practitioner up to 22 weeks and six days gestation... After that period, a medical practitioner can only perform an abortion if they consult with another practitioner and both are of the view that the procedure is medically appropriate.”

This according to the Attorney-General is consistent with current clinical practice, and is in line with recommendations made by the Department for Health and Wellbeing.

The Bill also proposes to remove a requirement that a person seeking to terminate a pregnancy must have been a resident of South Australia for at least two months.

Details of the Bill

Clause 4 of the Bill indicates that the Bill applies in addition to the Consent to Medical Treatment and Palliative Care Act 1995 (SA), the Controlled Substances Act 1984 (SA) and other Acts.

Part 2 of the Bill deals with the termination of pregnancies, setting out the circumstances in which terminations can be lawfully performed in SA (see Clause 5). The Bill also contains special provisions relating to terminations by a medical practitioner where the person is more than 22 weeks and 6 days pregnant (see Clause 6). Further, a registered health practitioner who performs a termination may be assisted by another registered health practitioner acting in the ordinary course of their profession (see Clause 7).

Clause 8 of the Bill allows a registered health practitioner to conscientiously object to performing or assisting in the performance of a termination. The proposed section does not however limit any duty owed by a registered health practitioner to perform, or to assist in the performance of, a termination in an emergency or to provide after care or ancillary medical treatment associated with a termination.

Clause 9 of the Bill provides for protection from liability where a registered health practitioners acts in accordance with the Bill/Act to either be involved in the performance of a termination or refuse to be involved in the performance of a termination. Liability includes that arising under disciplinary proceedings or similar proceedings.

Part 2 Division 2 of the Bill sets out the offences relating to unlawful termination of pregnancies, being termination of pregnancy by unqualified person (Clause 10). An offence is created for the performance of a termination or assistance with a termination by an unqualified person. The prosecution of an offence under this part requires the Director of Public Prosecution's written consent under Clause 11 of the Bill.

Part 2 Division 3 deals with protection from criminal liability and provides that a person does not commit offence and removes liability for a person involved in a termination conducted on themselves.

Part 3 of the Bill makes miscellaneous provisions relating to:

  • conduct and performance of registered health practitioners (see Clause 13);
  • restrictions on publication of certain information identifying information or data regarding a person involved in a termination (see Clause 14);
  • the provision of confidentiality requirements in relation to personal information obtained in connection to the Bill/Act and also provision for exceptions to confidentiality, including where required or authorised by or under law (see Clause 15);
  • a review provision requiring the Minister to cause a review of this Bill/Act on the expiry of five years from its commencement (see Clause 16);
  • a regulation making power to make regulations which require any registered health practitioner, hospital or private day procedure centre to collect and provide the Minister or the Department with data and statistics in relation to services connected with the performance of terminations (see Clause 17).

Related legislation is amended as follows:

  • In the Criminal Law Consolidation Act 1935 (SA) the Bill proposes to amend section 12A to remove a reference to abortion as a criminal offence under section 81(2) of the principal Act, and repeals Part 3 Division 17 to remove the division relating to abortion from the principal Act. Schedule 11 is also amended to abolish the common law offence of abortion.
  • In the Intervention Orders (Prevention of Abuse) Act 2009 (SA) the Bill proposes to amend section 8 of the principal Act's definition of an "act of abuse against a person resulting in emotional or psychological harm" include the coercing a person to terminate a pregnancy and coercing a person to not terminate a pregnancy.

Comments and Reaction

The Bill has not been without controversy and opposition to the changes it proposes. The main concern with the legislation reported is a concern that the  Bill does not offer the same protection to unborn babies in the later stages of pregnancy as is available under the current law. Such concerns are focused around the fact that the Bill omits wording that would only allow abortions later in pregnancy where such was undertaken to save the life of the mother.

The ABC New reports that Christopher Brohier, a lawyer for the Australian Christian Lobby, commented that they would like the wording in the current legislation be included:

"The current law provides that up to the time a child is capable of being born alive, abortion is available if two medical practitioners think it’s appropriate, ... After that it’s only available if it’s necessary to preserve the life of the mother."

The Attorney-General is reported as saying the Bill was an important reform "needed to change the outdated legislation and bring it from criminal law to a health model".

In response to the criticism of the Bill the Attorney-General is reported to have said, "terminations past 22 weeks and six days would only be available with the recommendation of medical professionals". Further, the Attorney-General stated, there has to be a very high threshold to allow a termination past 22 weeks and six days usually for one of two reasons the first, a foetal abnormality, and the second where a mother may have a life-threatening illness herself, for example cancer.

The Bill is currently in the Assembly and will be debated when the SA Parliament returns in 2021.

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