Abortion Is No Longer a Criminal Offence Anywhere in Australia

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My body my decision

This week marked a historic milestone in Australia, with Western Australia finally passing legislation which repeals the criminal offence of having an abortion, bringing the state into line with the rest of the country. 

Offence of abortion repealed nationwide

The offence of abortion has now been repealed in every state and territory in Australia. Importantly, it means that a termination of a pregnancy can be treated as a women’s health issue. 

The ACT was the first jurisdiction in Australia to repeal the offence of abortion in 2002. Most other states and territories followed the capital’s lead, with New South Wales passing the Abortion Reform Act in 2019.

Leading to the enactment of the New South Wales laws, there was heated debate about whether criminal offences relating to abortion – which were contained until then in sections 83 to 84 of the Crimes Act 1900 – should be repealed at all, with conservative members of state parliament asserting the rights of embryos should continue to supersede those of woman to make decisions about their own bodies.

However, those voices were ultimately drowned by those favouring bodily autonomy, and the legislation was ultimately passed.

Abortion Law Reform Act 

The New South Wales reforms set out the steps a health practitioner must take if they have a conscientious objection to performing an abortion, including informing the patient in a timely way, and facilitating access to another healthcare practitioner. 

Under the law, women can access an abortion in the first 22 weeks of pregnancy. It also includes a provision that terminations beyond 22 weeks are permissible if approved by two doctors, although stipulates that these must be performed in a public hospital.

Informed medical consent is required under the law – which includes being given comprehensive information relating to the options available, the abortion procedure, as well as risks and potential complications.

Young women under the age of 16 years may give informed consent if the doctor determines they are competent to do so.  

The legislation bans sex-selective abortions.

And it also makes it a crime for anyone to assist in terminations who are not authorised to do so. This has a maximum penalty of seven years imprisonment.

It also makes it a crime to coerce another person to prevent or force them to have an abortion – and this is punishable by up to two years in prison.

Standardising legislation 

The legislation is very similar, across each state and territory, however it highlights again, the potential problems which can arise from having different laws around health across the nation.  

Victoria repealed the offence of abortion in 2008, Tasmania in 2013. The Northern Territory in 2017 and South Australia’s reforms came into effect in 2022.

Another issue is that while law reform might make it easier for women to have terminations, there are not always services close by. And there’s the cost, which can be prohibitive. 

Safe Access zones around clinics in New South Wales

Before passing abortion reforms in New South Wales, the state government introduced the Public Health Amendment (Safe Access to Reproductive Health Clinics) Bill 2018, to legislate the establishment of safe access zones (150 metres) around the health clinics and hospitals where abortions are performed. 

The legislation makes it an offence for a person to interfere with access to a clinic, to block or obstruct roads, footpaths, or other access points leading to any of these clinics. And it is also an offence to verbally harass, intentionally take photos or videos of a person within the zone, distribute or publish a recording of any person taken within the safe access zone without consent and which could identify the person. 

It is also an offence to make any communication which relates to abortion which could cause distress or anxiety to a person accessing or leaving a clinic.

The offences carry maximum penalties of six months in prison for a first offence, or 12 months for a subsequent offence.

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

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