Abortion to Remain a Crime in Queensland and NSW

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Pregnant woman

Welcome to Australia, 2017, where abortion is still a crime.

And it will remain that way for at least another two years in Queensland after reform legislation was pulled from parliament.

Independent MP Rob Pyne has withdrawn two private member’s bills he had introduced in state parliament, one of which was set to decriminalise abortion.

The bills were introduced months apart — the first sought to remove abortion from the criminal code, but did not specify the stage of pregnancy before which an abortion could be performed.

When proposing the bill, Mr Pyne said the omission was deliberate as he wanted MPs to debate the cut-off period.

He later introduced a second bill to regulate who could perform an abortion, and to give doctors the ability to conscientiously object.

That bill proposed to allow abortions when a woman is more than 24 weeks pregnant, as long as two doctors agreed that continuing the pregnancy would create a greater risk to the woman’s physical or mental health than a termination.

When it became clear this week that parliament would not pass either bill, Mr Pyne withdrew the proposals completely.

Law Reform Commission review

State Premier Annastacia Palaszczuk says the bills will now be sent to the Queensland Law Reform Commission for review, whose recommendations may inform a fresh proposal some time in the future.

New South Wales

Queensland is not the only Australian jurisdiction where abortion remains a crime – it also constitutes a criminal offence in NSW.

Section 82 of the Crimes Act 1900 (NSW) makes it a crime for a pregnant woman to unlawfully administer a drug or poison, or unlawfully use an instrument to procure a miscarriage.

Section 83 makes it an offence for other people to intentionally cause a woman to suffer a miscarriage using unlawfully administered drugs, poison or instruments.

The maximum penalty for each of these offences is 10 years imprisonment.

And section 84 prescribes a maximum penalty of 5 years imprisonment for anyone who supplies or procures a drug, poison or instrument with the knowledge that they may be used unlawfully to cause a miscarriage.

However, the 1971 case of R v Wald ruled that abortions do not contravene these laws in certain circumstances.

That case involved a criminal trial of five people – most of whom were health care professionals. The five defendants were involved in performing an abortion at the Heatherbrae clinic in Bondi.

All were charged under section 83 of the Crimes Act.

The trial judge found that an abortion is lawful if there is an ‘economic, social or medical ground or reason’ upon which the doctor could honestly and reasonably believe that an abortion could avoid a ‘serious danger to the pregnant woman’s life or her physical or mental health.’

All five defendants were ultimately found ‘not guilty’ on that basis – and the ruling opened the doors to women seeking to terminate a pregnancy for reasons such as financial disadvantage or instability, or fears of social stigma and judgment – factors which may negatively affect a woman’s mental wellbeing.

The judgment also affirmed that abortions do not need to be performed in hospitals – paving the way for women’s health clinics around the state.

Moves to legalise abortion in NSW

Last year, Greens upper house member Mehreen Faruqi introduced a bill to state parliament calling for sections 82, 83 and 84 to be repealed, as well as for the introduction of privacy zones around abortion service providers and clinics. That bill is yet to be debated.

One in three Australian women have an abortion at some stage in their lives, and while the proposed laws may seem like a mere technicality, civil liberty groups say the formal repeal of the crime of abortion would be an important confirmation of women’s rights.

What about the abortion pill?

Australia legalised Mifepristone and misoprostol, commonly known as RU486 or the “abortion pill” in 2006.

Both drugs are designed to induce a miscarriage in women who are up to 9 weeks pregnant.

In 2013, the Therapeutic Goods Administration put both drugs on the Pharmaceutical benefits scheme and they are legal to obtain and use in Australia.

The morning after pill

Another option to ensure that unprotected sex doesn’t result in unwanted pregnancy is the “morning after” pill, which can stop a woman from conceiving.

These drugs fall into the category of ‘emergency contraception’ and are therefore legal throughout Australia.

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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.
Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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