Abortion in Australia: A Legal Misconception

By Petersen, Kerry | Australian Health Review, May 2005 | Go to article overview

Abortion in Australia: A Legal Misconception


Petersen, Kerry, Australian Health Review


Abortion is a procedure and practice which has been universally practised in some form since the beginning of recorded history. While deliberate terminations of pregnancy are reported throughout history, all races, cultures and religious groups have sharply divergent and frequently irreconcilable opinions on this highly controversial subject.1

ABORTION is A CONTROVERSIAL and complex issue for which there is no black and white legal solution. Attitudes towards abortion span a broad spectrum, but opinion polls show that most Australians approve of women having the right to make decisions about abortion and there is little support for introducing restrictive laws.2,3,4 The attitudes of parliamentarians mirror those of the general public and cut across party lines. Many politicians are reluctant to become involved in the public debate and hide behind the so-called conscience vote in parliaments, although it is not entirely clear why this subterfuge is regarded as acceptable. Nevertheless, periodically some politicians raise the issue for ideological or other reasons.5

The power to regulate abortion comes under the jurisdiction of the states and territories and contemporary laws vary from state to state even though their common provenance is the UK statute, the Offences Against the Person Act 1867 (amended by Abortion Act 1967 and the Human Fertilisation and Embryology Act 1990, s.37). This statute was passed in an era when abortion was a taboo subject, and the procedure was unsafe and accompanied by high mortality and morbidity rates. This law framed the offence as an "attempt" to make it easier to prove beyond reasonable doubt, and it was transported to Australian states around the turn of the twentieth century with other criminal laws. The following three offences, which are derived from that 1867 Act, continue to underpin contemporary abortion laws in most Australian jurisdictions:

* The attempt to procure an unlawful miscarriage by the pregnant woman

* The attempt to procure an unlawful miscarriage (by another person, whether or not the woman is pregnant)

* Supplying the means to procure an unlawful abortion knowing there is an intention to procure a miscarriage unlawfully (whether she is pregnant or not).

In practice, medical termination of pregnancy is widely available because of amending state legislation or "liberal" judicial decisions.6 Interestingly, a recent study has found that although the majority of Australian general practitioners believe all women should have access to services for termination of pregnancy (TOP), more than a third admitted they did not fully understand the laws in their state or territory.7 Prosecutions against medical practitioners have always been rare because inter alia it is difficult to prove that an unlawful abortion had been performed, and medical practitioners are reluctant to testify against each other.8 Nevertheless, Western Australia and the Australian Capital Territory are the only states where it is not a criminal offence for a woman to have an abortion.

In Australia, the incidence of abortion is difficult to estimate accurately, and South Australia is the only jurisdiction which collects and publishes reliable data on termination of pregnancy.9 It has been estimated that in 2002 about 73 300 TOPs took place in Australia, however this estimate is likely to be on the low side.9

Current law

Some Australian states have modified their laws but unlawful abortion remains a criminal offence in every jurisdiction apart from the ACT. In the "judicial jurisdictions" - Queensland, New South Wales and Victoria - the courts rather than parliaments have changed the law (see the Criminal Code Act 1899 [QLD]; Crimes Act 1900 [NSW]; Crimes Act 1958 [Vie]). The Victorian case R v Davidson10 has become the benchmark for lawful abortion in these states. According to Menhennitt Js ruling in the case, an abortion is lawful if the accused held an honest belief on reasonable grounds that the abortion was:

* necessary to preserve the woman from serious danger to life or her physical or mental health not being the normal dangers of pregnancy and childbirth which the continuance of the pregnancy would entail (the necessity test); and

* not out of proportion to the danger to be averted in the circumstances (the proportionate test). …

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