ABORTION LAW REFORM BILL 2008 Explanatory Memoranda
ABORTION LAW REFORM BILL 2008
Abortion Law Reform Bill 2008
Introduction Print
EXPLANATORY MEMORANDUM
General
This Bill reforms the law relating to abortion; regulates health practitioners
performing abortions; and amends the Crimes Act 1958 to repeal the
provisions relating to abortion, abolish the common law offences relating to
abortion, and to create new offences relating abortion.
PART 1--PRELIMINARY
Clause 1 sets out the main purposes of the Act.
Clause 2 provides for the commencement of the Act and states that the Bill
commences on the day after the day on which it receives Royal
Assent.
Clause 3 sets out certain defined terms--
abortion is defined as intentionally causing the termination of a
woman's pregnancy by using an instrument, by using a drug or
combination of drugs, by any other means. This definition
broadly follows the elements of the offence presently contained
in section 65 of the Crimes Act 1958, with the inclusion of
express reference to drugs and combination of drugs as these are
now conventional means of causing an abortion;
terms relating to health practitioners are defined by reference to
the Health Professions Registration Act 2005. Registered
health practitioner is a collective term which refers to persons
who are registered as health practitioners under that Act.
Registered medical practitioner, registered nurse, and registered
pharmacist are all regulated health professions. A regulated
health profession means a health profession that is regulated by a
responsible Board under the Health Professions Registration
Act 2005.
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woman is defined as a female person of any age so that the
protection afforded by the Act is extended to both adult and
young women of child-bearing age equally.
PART 2--ROLE OF REGISTERED HEALTH
PRACTITIONERS
Clause 4 provides that a registered medical practitioner may perform an
abortion on a woman who is not more than 24 weeks pregnant.
The definition of abortion includes both surgical and drug
induced abortion, and both may be performed by a registered
medical practitioner.
Clause 5 sets out the circumstances in which a registered medical
practitioner may perform an abortion on a woman who is more
than 24 weeks pregnant. The registered medical practitioner may
only perform such an abortion if the medical practitioner
reasonably believes that the abortion is appropriate in all the
circumstances, and the medical practitioner's belief is supported
by at least one other registered medical practitioner.
In considering whether abortion is appropriate in all the
circumstances, the registered medical practitioners must have
regard to all the relevant medical circumstances, and the woman's
current and future physical, psychological and social
circumstances. These last factors have been included as they
presently form part of the common law criteria for lawful
abortion. The reference to all the relevant medical circumstances
is intended to ensure that the medical condition of the foetus and
the woman are to be taken into account. A registered medical
practitioner who performed an abortion on a woman who was
more than 24 weeks pregnant without considering the relevant
circumstances, or without seeking the opinion of a second
registered medical practitioner will be liable to be found to have
engaged in professional misconduct under the Health
Professions Registration Act 2005.
Clause 6 confirms that a registered pharmacist or a registered nurse who is
authorised under the Drugs Poisons and Controlled Substances
Act 1981 to supply a drug or drugs may administer or supply
such drug or drugs to cause an abortion in a woman who is not
more than 24 weeks pregnant. Certain drugs, such as the
so-called "morning after pill" which are intended to cause
abortion in the very early stages of pregnancy are already
authorised for over the counter sale by pharmacists, or supply by
nurse practitioners. Approval and regulation of these drugs is
through the Commonwealth Therapeutic Goods Administration.
This provision is included to ensure that pharmacists and nurses
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operating lawfully within the Drugs Poisons and Controlled
Substances Act 1981 are also authorised under this Act.
A pharmacist or nurse who supplied or administered drugs when
not authorised to do so or in a manner inconsistent with their
authorisation will be liable to be found to have engaged in
professional misconduct under the Health Professions
Registration Act 2005.
Clause 7 deals with the supply and administration of drugs by registered
pharmacists and registered nurses to cause an abortion in a
woman who is more than 24 weeks pregnant. The clause
provides that such supply or administration may only occur
where the pharmacist or nurse is employed or engaged in a
hospital or day procedure centre and has been directed in writing
by registered medical practitioner to do so. As in clause 5, the
registered medical practitioner may only give such a direction if
he or she reasonably believes that abortion is appropriate in all
the circumstances, and the medical practitioner's belief is
supported by at least one other registered medical practitioner.
A pharmacist or nurse who administered or supplied drugs to
cause an abortion in a woman who is more than 24 weeks
pregnant, other than in accordance with this clause, will not come
within the protection of this Act.
Clause 8 imposes obligations on registered health practitioners who have a
conscientious objection to abortion. The clause requires such
practitioners, if requested by a woman to advise on a proposed
abortion, or to perform, direct, authorise or supervise an abortion
for that woman, to inform her of their conscientious objection,
and to make an effective referral to another health practitioner
in the same regulated health profession who the practitioner
knows does not have a conscientious objection to abortion.
This obligation will require the registered health practitioner to
make enquiries or take other steps to inform himself or herself of
the views of the health practitioner to whom the referral is to be
made. The term regulated health profession means a health
profession regulated by a responsible board under the Health
Professions Registration Act 2005. The effect of this is that a
registered medical practitioner must make a referral to another
registered medical practitioner, and may not, for example, make
a referral to a member of a different health profession, such as a
psychologist. The intention is that if a woman seeks advice or
service from a health practitioner who has a conscientious
objection to abortion, she will be referred promptly to another
equivalent health practitioner who is able to assist her.
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The clause also provides that, notwithstanding a conscientious
objection, a registered medical practitioner is under a duty to
perform an abortion, and a registered nurse is under a duty to
assist in the performance of an abortion in an emergency where
the abortion is necessary to preserve the life of the pregnant
woman.
PART 3--AMENDMENTS TO THE CRIMES ACT 1958
Clause 9 repeals section 10 of the Crimes Act 1958, which is contained in
subdivision (2) of Division 1 of Part I of that Act. Section 10 of
the Crimes Act 1958 contains the offence of child destruction,
which the Victorian Law Reform Commission has recommended
be repealed.
Clause 10 amends section 15 of the Crimes Act 1958 to extend the concept
of serious injury to include the destruction, other than in the
course of a medical procedure, of the foetus of a pregnant
woman, whether or not the woman suffers any other harm.
The definition of serious injury is relevant to the crimes of
intentionally causing serious injury set out in section 16 of the
Crimes Act 1958 and of recklessly causing serious injury set out
in section 17 of the Crimes Act 1958. The clause includes
definitions of terms used in the expanded definition of serious
injury. The defined terms are abortion, medical procedure,
registered nurse, registered pharmacist and woman.
The definitions of abortion, registered nurse, registered
pharmacist and woman are identical to the definitions in Part 1
of the Bill. Section 15 of the Crimes Act 1958 already includes
a definition of registered medical practitioner. The definition
of medical procedure is limited to surgical and drug induced
abortion performed in accordance with Part 2 of the Bill.
A broader definition of medical procedure is not required, as
the substantive offences in sections 16 and 17 of the Crimes Act
1958 both include the element of "lawful excuse" such that other
forms of medical procedure in which termination of pregnancy is
not the primary intention are not caught by the offences.
Clause 11 substitutes new sections 65 and 66 into the Crimes Act 1958.
New section 65 makes it an offence for a person who is not a
qualified person to perform an abortion on another person.
The new section clarifies that a woman who consents to an
abortion on herself is not guilty of an offence against this section.
The new section specifies that registered medical practitioners
are qualified persons for the purposes of this new offence.
Registered pharmacists, and registered nurses who perform an
abortion by administering or supplying a drug or drugs in
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accordance with Parts 1 and 2 of the Bill are also qualified
persons for the purposes of the new offence. The clause defines
the terms abortion, perform an abortion, registered medical
practitioner, registered nurse, registered pharmacist and
woman. All these definitions are consistent with the definitions
in Part 1 of the Bill. The term "perform an abortion" includes the
supply or procuring the supply of any drug or other substance
knowing that it is intended to be used to cause an abortion.
This reference to drug or other substance links to paragraphs (b)
and (c) of the definition of abortion in Part 1 of the Bill.
New section 66 formally abolishes any common law rule creating
an offence in relation to procuring a woman's miscarriage.
Clause 12 repeals Part 3 of the Bill on the first anniversary of the day on
which the Act receives the Royal Assent. The repeal of Part 3
does not affect in any way the operation of the amendments made
by Part 3 (see section 15(1) of the Interpretation of Legislation
Act 1984).
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