Crimes Act Provisions: Abortion

Current Position Australian Jurisdictions- Crimes Act Provisions relating to abortion (as at 22 March 2018)

The only states where abortion is wholly decriminalised i.e. not in the Criminal Code, are Victoria, Tasmania, ACT and NT. Following law reforms WA, NT, SA are much more constrained than common law permits in NSW under 1971 Levine and 1994 Kirby Rulings.


State/Territory

Crimes Act Amendment /Date

Detail of provisions/Recent Queensland and NSW Cases

Comment

South Australia

1969 amended

SA still partly in the Crimes ActThe Criminal Law Consolidation Act (1935) was amended in 1969 so that Abortion remains in the Crimes Act but 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 or reasonably foreseeable environment), would be posed by continuing rather than terminating the pregnancy. The “foetal 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.

WA

Abortion remains in the criminal code but was amended in 1998.

The WA Health Act (Abortion) Amendment Act 1998 details grounds when the performance of abortion is justified. One of these is foetal abnormality. 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. Also health institutions and hospitals as well as doctors/nurses can conscientiously object

The Health Act also deals with abortion. Abortion is legal if performed before 20 weeks gestation, with further limitations for women under 16. Criminal Code S199 stipulates:Abortion must be performed by a medical practitioner. . 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 WA.

ACT

2002 decriminalised

Passed Medical Practitioners Maternal Health Amendment Act

Requires that abortions be performed by a medical practitioner in an approved medical facility.

Victoria

2008Abortion Law Reform Act.

 

Access via consultation with a health practitioner up to 24 weeks. After 24 weeks the practitioner must consult with another medical practitioner.

Tasmania

2013 repealed Crimes act provisions

Passed Reproductive Health (access to Terminations) Act 2013. a private members bill

Access in consultation with a medical practitioner up to 16 weeks, post 16 weeks two doctors.

NT

2017

On 21 March 2017 the Termination of Pregnancy Law Reform Bill 2017 (NT) passed the Legislative Assembly of the Northern Territory. The Bill was assented to on 24 April 2017.160 The Termination of Pregnancy Law Reform Act 2017 (NT) commenced on 1 July 2017.

Services for termination of pregnancy are legally available up to 14 weeks gestation if a doctor agrees it is reasonable, and up to 23 weeks if another doctor approves as well. They are only available over 24 weeks if the life of the woman is in danger. Services are restricted to Darwin and Alice Springs Hospitals but the Act provides for medical abortion

Queensland

Abortion is defined as unlawful in the Queensland Criminal Code under sections 224, 225 and 226

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. Both acquitted 1986. Justice Maguire Ruling abortion lawful if carried out to prevent serious danger to the woman’s physical and mental health from the continuance of the pregnancy.R v Leach and Brennan: 2010 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.

Unlike the 1971 Levine Ruling in NSW, economic and social issues are not able to be considered under Maguire Ruling.Queensland Government requested the LRC in 2017 to recommend on ways to remove abortion from the Crimes Act. The Commission will report by the end of June this year.http://www.austlii.edu.au/au/legis/qld/consol_act/cc189994/ 

NSW

Crimes Act 1900

Abortion law is found in sections 82–84 of the Crimes Act 1900. Sections 82–84 were part of the Crimes Act 1900 when it was first enacted. In the intervening 118 years, ss 82–84 have remained unchanged. Sections 82–84 of the Crimes Act 1900 prohibit “unlawfully” performed abortions without specifying what the word “unlawfully” means. The offences apply to both a woman undergoing an abortion and a person who performs one.In New South Wales, an important District Court ruling in 1971 ('the Levine ruling') established that an abortion would be lawful in that State if there was 'any economic, social or medical ground or reason' upon which a doctor could base an honest and reasonable belief that an abortion was required to avoid a 'serious danger to the pregnant woman's life or to her physical or mental health.' That danger might arise at any time during the pregnancy. The Levine ruling was based on the statement of the law in Victoria in the Menhennitt ruling, but was in the result somewhat more liberal. Like the Menhennitt ruling, the Levine ruling apparently permit an abortion at any stage of pregnancy. Unlike the Menhennitt ruling, however, the Levine ruling seems to impose a requirement that an abortion be performed by a medical practitioner in order to be lawful.In the 1982 case K v. Minister for Youth and Community Services, the Levine ruling was applied without criticism or challenge by a judge in the Equity Division of the New South Wales Supreme Court.In 1994 the Levine ruling was re-interpreted and applied in a restrictive way by a Supreme Court judge in the Superclinics case. That case involved a legal action brought by a woman against a medical clinic in respect of the negligent failure to diagnose her pregnancy at a time when she could have had an abortion. The judge in this case refused to award her damages, on the basis that it would have been a crime for her to obtain an abortion had she known she was pregnant at the relevant time. This result-and the restrictive re-interpretation of the Levine ruling that the judge applied-was overturned on appeal by the majority of the New South Wales Court of Appeal. The interpretation of the law given in that appeal by Kirby P now represents the legal position in New South Wales. The Kirby ruling is somewhat more liberal than the original Levine ruling. The Kirby ruling does not confine permissible abortion to cases where a serious danger to the woman's health would arise during the pregnancy, but additionally allows consideration of threats to her health that might arise after the child's birth.https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp9899/99rp01

In the absence of any statutory reform, it has fallen to the courts to interpret NSW’s abortion laws in light of the social and technological changes that have occurred since their enactment and “the reality of the availability of termination procedures in our society today”. Abortion is lawfully available only if a medical practitioner forms an honest belief (a subjective test) based on reasonable grounds (an objective test) that abortion is necessary to preserve the woman from serious danger to her life or physical or mental health. How that complex legal test is to be applied in practice has been left to the courts to determine on a case by case basis.There was a recent ( August 2017) case heard in the Magistrate’s CourtBlacktown case 2017A Sydney woman who bought pills on the internet to abort her child after her boyfriend urged her to terminate the pregnancy has been convicted for self-administering a drug to procure a miscarriage.In a decision on July 5 2017, Local Court magistrate Geoffrey Hiatt said the woman, who was 28 at the time, had a "clear intent to procure a miscarriage".He noted "the ongoing debate regarding pro- and anti-abortion is a polarising issue within the community" and said it was his job to apply the law rather than "express views either way".It is an offence under the NSW Crimes Act for a pregnant woman to unlawfully administer to herself "any drug or noxious thing" or unlawfully use "any instrument or other means" with the intention of procuring a miscarriage.The offence is punishable by up to 10 years' jail but the case was dealt with summarily – without a jury – in Blacktown Local Court where the maximum sentence that can be applied is two years.The woman was convicted of the offence and given a three-year good behaviour bond.The abortion provisions in the Crimes Act are rarely used. In 2006, a NSW doctor was placed on a two-year good behaviour bond after being convicted of unlawfully performing an abortion.The court heard the woman in the latest case had five children between four and nine and fell pregnant in February 2015.https://www.smh.com.au/national/nsw/sydney-woman-prosecuted-for-taking-abortion-drug-20170814-gxvoqd.htmlComprehensive account via the magistrate’s decision.https://www.caselaw.nsw.gov.au/decision/599115d6e4b058596cba9439

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