11 May 2017

2nd Reading Speech

The Hon. ADAM SEARLE ( 11:31 ): I make a contribution to debate on the Abortion Law Reform (Miscellaneous Acts Amendment) Bill 2016. Having thought about this issue over many years as an individual, a legal practitioner and now a member of Parliament, I am of the view that the termination of pregnancy should be safe, rare and legal. It is or should be a matter entirely and only for a woman and her medical practitioner. The choice is not whether to allow abortions: The choice is whether, as a society, abortions are legal or illegal. We still have in our memory the consequences of the criminalisation of abortion for many individuals—the legal dangers they were exposed to and the physical harms they suffered, sometimes with fatal consequences. If we want a civilised society, and I believe most of us do, I believe very strongly that we must ensure access to abortion is appropriately and fairly regulated, and that those services are safe for women.

The gateway should be left to women and their doctors only. To do otherwise will only result in more grief, danger and harm. My view has been informed by discussing the issues surrounding pregnancy termination with those who have been directly impacted, those who have made the decision to have a termination, and those who have decided not to, with the assistance of lawyers, medical practitioners, ethicists, religious persons—both lay and clergy—as well as friends, relatives and the wider community. While views have not been unanimous and are deeply and passionately held, the balance has clearly been in favour of ensuring that women can access this medical service lawfully, safely and without interference from any person. On this issue, members of the Australian Labor Party and Parliament are permitted a conscience vote. We may vote according to our own views and beliefs, rather than based on any party policy or discipline. As a result, I will vote for this bill, despite its many imperfections.

There are diverse views on principle involved as well as on the detail of the legislation before the House. I know there are deeply held convictions on all sides of this conversation, and I respect that. Anyone who knows me will not be surprised to learn that I am pro choice; that has always been my position. Equally, no-one should be surprised to learn that the bill we are considering is deeply flawed in a legal and technical sense. As I will touch on briefly, access to this medical treatment rests upon an interpretation by the courts of aspects of the Crimes Act. On one view, prima facie, abortion is a crime, but there is a medical exemption based on a ruling by Judge Levine in the District Court. This bill removes those aspects of the Crimes Act. Therefore, the case that has developed that provides lawful access for women to abortion in this State will also be removed by this bill. What will be left is a vacuum, one not filled by the bill, one that will be left to be filled by further developments in the law, one case at a time, by judges.

Despite the enlightened approach of Judge Levine and other jurists, this is no guarantee that current rights will be reserved. There must be a real risk that those rights will be jeopardised and perhaps even lost. Despite this, I will vote in favour of the bill because there are ways to address the problems I see with the bill’s current context and that is consistent with the approach I took some years ago to the euthanasia bill proposed by the Hon. Cate Faehrmann. This bill seeks to repeal offences under the Crimes Act relating to abortion, which I support. The bill also seeks to abolish any rule of the common law that creates an offence relating to abortion, which I also support. The bill provides that a failure to advise a patient of a conscientious objection or to refer the patient to another medical practitioner constitutes unsatisfactory professional conduct for the medical practitioner. I do not support this aspect of the bill, and it needs to be remedied. This aspect has been the subject of a lot of communication with me by medical practitioners and others. The bill also provides for exclusion zones around premises at which abortions are provided. I thoroughly support this, and if this bill is unsuccessful I will support the Hon. Penny Sharpe’s bill that affects that change.

Originally, the criminalisation of carrying out abortions arose in the common law and migrated into the statutory common law here and in other jurisdictions. In New South Wales, the law is governed by sections 82 to 84 of the Crimes Act as determined by R v Wald [1971], a ruling of Judge Levine, and of course the Court of Appeal decision in CES v Superclinics. Those sections of the Crimes Act prohibit unlawfully procuring a woman’s miscarriage and they carry maximum penalties of up to 10 years imprisonment. The Crimes Act, however, is silent on whether the word “unlawfully” implies that abortions are unlawful in all circumstances or that abortions are unlawful in some circumstances but not in others, and the courts have clearly adopted this second approach.

In the absence of Australian authority on the question of what constitutes unlawful abortion, it was genuinely assumed that the legal position was reflected in the 1930s English case R v Bourne where a leading gynaecologist and obstetrics surgeon was acquitted by a jury after being charged with performing an lawful abortion on a 14-year-old girl who became pregnant as a result of being raped. Justice Macnaghten held that for the abortion to have been unlawful, the Crown would have had to prove beyond reasonable doubt that the doctor did not act in good faith for the purposes only of preserving the life of the girl and extended the situation to where the doctor believed:

On reasonable grounds with adequate knowledge, that the probable consequence of the pregnancy would be to make the woman “a physical or mental wreck”.

This was undefined, but there is little doubt that the test required a very high level of danger. The Victorian case of R v Davidson carried it a bit further where Justice Menhennitt confirmed that it all hinged on what the word “unlawfully” meant. Having particular regard to the deliberate and repeated use of the word unlawful and the nature of the offence, he determined that “necessity is the appropriate principle to apply to determine whether a therapeutic abortion is lawful or unlawful”, which led us to the New South Wales case of Wald, where Judge Levine held that if operations to terminate pregnancies were skilfully performed by qualified medical practitioners with a woman’s consent, the operation would be lawful, provided only that the accused:

… had an honest belief on reasonable grounds that what they did was necessary to preserve the woman involved from serious danger to her life, or physical or mental health, which the continuance of the pregnancy would entail, not merely the normal dangers of pregnancy and childbirth; and that in the circumstances the danger or the operation was not out of proportion to the danger intended to be averted.

The judge continued that it would be for the jury to decide whether there existed, in the case of each woman, any economic, social or medical ground or reason that in their view could constitute reasonable grounds upon which an accused could honestly and reasonably believe there would result a serious danger to her physical or mental health. The effect of this ruling was that economic and social factors could be considered when determining whether to lawfully terminate a pregnancy. This decision was affirmed and, I believe, extended in CES and anor v Superclinics(Australia) Pty Ltd and Ors. Previous speakers have spoken about that case, which was essentially a wrongful birth case turning on a claim for damages brought by parents against a doctor following the birth of a child who would not have been born but for the negligence of doctors.

To determine whether it was possible to claim damages, the court had to determine whether any termination would have been lawful. As the Hon. John Graham indicated, each of the three judges applied the test in R v Wald to the same set of facts but came to three quite different conclusions. This shows the dangers of leaving this important area to judges only. I make no criticism of those judges; it simply highlights the complexity of the issues involved and the dangers because of the different results you might get. However, the President of the Court of Appeal, Justice Kirby, held that a medical practitioner may take into account danger to the woman’s health both during and after the pregnancy. The judges did not disagree on that point. I note that the Hon. Trevor Khan spoke of the cases of Smart and Sood, where doctors were convicted for performing abortions outside the ruling of R v Wald.

Termination of a pregnancy in New South Wales is lawful if the procedure is performed with the consent of the woman and by a registered medical practitioner, and if the medical practitioner procuring the termination has an honest belief, based on reasonable grounds that the procedure is necessary to preserve the women from serious danger to her life, or physical and mental health—these grounds may be medical, economic or social—and that, in the circumstances, the operation is not out of proportion to the danger to be avoided. Although not ideal, this has provided many women, over the course of several decades, with the opportunity to access abortions in a safe, secure and medically supervised manner. Any move to change the legal basis for the provision of abortions in New South Wales must have protections at least equal to the current protections. I do not think that the bill before the House has that. I think that the bill, if enacted in its present form, would create an uncertain legal foundation for the provision of abortions in New South Wales.

Since Wald interprets the provisions of the Crimes Act, by removing those aspects of the Crimes Act and not replacing them with provisions that stipulate the conditions of when abortions would be legal and making clear that the carrying out of abortions is, in fact, medical treatment, this would, at least potentially, result in there being a very uncertain legal foundation. I do not think that this is in anyone’s interests. The bill should contain a provision that would specifically set out the conditions under which abortions would be legal in this State. The bill should contain provisions specifying that abortions must be carried out by a qualified medical practitioner. At least for surgical abortions, terminations should be carried out in a medical facility or in a place approved by the health Minister. I note that in their current form my amendments do not address the issue—they do not currently distinguish between surgical and non-surgical abortions. My understanding is that most of the abortions now carried out are not of a surgical nature. So if we do get to the Committee stage I would have to recalibrate that amendment.

In its current form the bill would lead to a situation where it would be unclear whether carrying out an abortion would be deemed to be a medical procedure or a medical treatment. That again raises the question of the law being developed by judges without the protection and guidance of existing case law. I do not think that is sensible. I do not think that that is in anyone’s interests. All this bill does is decriminalise abortion. The bill takes abortion out of the Crimes Act. I support that, but it creates a vacuum that must be filled. There must be a definition of what abortion is, when it can be carried out and by whom, and in what circumstances. The bill must also make clear that carrying out abortions is providing medical treatment. Otherwise, the ethical and legal protections that apply to medical practitioners and others who carry out abortions will not be engaged.

Mere abolition of the criminal aspects of the law leaves a situation where it is not even a requirement that only a medical practitioner may carry out these procedures. That is certainly in no-one’s interest, because it raises the prospect of engaging in dangerous, harmful procedures. States and Territories that have decriminalised abortion often leave the decision to have an abortion to the woman concerned, at least during the first trimester, and have provisions ensuring that only registered medical practitioners—or a “person qualified to perform an abortion”—are legally allowed to carry out such procedures. For example, in Victoria, a registered medical practitioner may perform an abortion on demand up until 24 weeks. Thereafter only a registered medical practitioner may carry out such a procedure, but only if the medical practitioner reasonably believes that the abortion is appropriate in all the circumstances and has consulted at least one other registered medical practitioner who also reasonably believes the abortion is appropriate in all the circumstances.

The Australian Capital Territory has abolished the offence of abortion, but has taken a different approach. It does not set a period of time in which an abortion can be obtained on demand. It is left up to the medical practitioners. I have not yet met any medical practitioner who performs these procedures who would do so at a very late stage of pregnancy. Any law to decriminalise abortion should contain a clear definition of “abortion”; stipulate the conditions under which a woman may have an abortion—that is, with the woman’s consent only—stipulate that only a registered medical practitioner may carry out abortion, and stipulate that abortions, or at least those carried out surgically, are to be carried out in a place approved by the Minister for Health. It is appropriate that the bill contain clauses protecting medical practitioners to be able to refuse to perform abortions or to refuse to assist in carrying them out. There is a lot of concern by medical practitioners and others that this legislation, although not requiring them to do so, makes it unsatisfactory professional conduct if they have a conscientious objection and do not refer a patient to someone who does not have that objection.

I think that any bill to decriminalise abortion should meet the needs of conscientious objectors by providing that no medical practitioner is under a duty to carry out or assist in carrying out an abortion and is entitled to refuse to assist in carrying out an abortion, and that a failure to refer the patient elsewhere not count as unsatisfactory professional conduct. The amendments should provide that only registered medical practitioners can perform abortions, that surgical abortions must take place only in premises approved by the health Minister; no person is obliged to participate in carrying out or assist in carrying out an abortion; and a person is entitled to refuse to participate in carrying out an abortion. Importantly, the amendments should also make clear that carrying out an abortion constitutes a medical treatment and is not prevented from being carried out by the common law. Any amendment should also make clear that any person has the right to consent to or refuse any medical treatment including an abortion. These changes would make it clear that it is covered and regulated by health practitioners legislative regime, which is appropriate.

Should this bill proceed beyond the second reading stage, I will move amendments in the Committee stage that achieve those aims because they are necessary to make the legislation safe, workable and fair to all. However, I note that there is some concern that this bill will not succeed at the second reading stage. I take the point raised by the Hon. John Graham that this is the beginning of the conversation rather than the end. Where important social reforms such as this are effected, a useful precursor is the development of the legislation through cross-party, non-partisan dialogue. That was absent from Ms Faerman’s euthanasia bill, and that bill failed. Although I do not doubt Dr Faruqi’s genuineness on this issue, dialogue was not the way in which she proceeded. If this bill fails I would certainly be interested in reaching out to other members across the Chamber in developing a cross-party working group to carry on the conversation. I thank honourable members for their consideration.