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CLAUSE NOTES
Reproductive Health (Access to Terminations) Bill 2013
Clause Notes
PART 1 PRELIMINARY
Clause 1 Short title
Clause 2 Commencement date
Clause 3 Interpretation
Clause 3 introduces definitions for `nurse', `terminate' and
`woman'.
The definition of `terminate' covers both surgical
terminations and terminations brought about by the use of
medications. The definition makes it clear that a person
procuring or providing another person with any item for use
in a termination is not, by that action alone, terminating a
pregnancy. The supply of the item may still be an offence
under other legislation (for example, the supply of
medication for which a person is not lawfully permitted to
supply would be an offence under the Poisons Act 1971).
PART 2 ACCESS TO TERMINATIONS
Clause 4 Terminations by medical practitioner at not more
than 16 weeks
Clause 4 provides that a medical practitioner may terminate
a pregnancy at or before 16 weeks upon the woman's
consent.
Consent takes its usual meaning within the medical context.
That is, voluntary consent by a patient, after receiving
proper and adequate information about the proposed
treatment, including potential risks and benefits and
alternative options. These requirements exist for all medical
procedures and are imposed by professional medical
standards (see: Good Medical Practice: A Code of Conduct for
Doctors in Australia issued by the Medical Board of Australia;
and General Guidelines for Medical Practitioners on Providing
Information to Patients issued by the National Health and
Medical Research Council).
Clause 5 Terminations by medical practitioner after 16 weeks
Clause 5 sets out a different framework for terminations
after 16 weeks.
It provides that a medical practitioner may terminate a
pregnancy on the woman's consent if two medical
practitioners reasonably believe that continuing the
pregnancy would involve a greater risk of injury to the
woman's physical or mental health than terminating it. In
reaching this view the medical practitioners are to have
regard to the woman's current and future physical,
psychological, economic and social circumstances. One of
the medical practitioners is to specialise in obstetrics or
gynaecology.
The requirement to obtain the approval of two medical
practitioners (one a specialist) is a requirement that
currently exists for terminations at any gestation (under the
Criminal Code).
Consent will have the same meaning as above.
A medical practitioner failing to comply with the above
framework will face professional, not criminal, sanctions
unless the failure relates to a lack of consent. In that case,
the risk of criminal sanctions for medical practitioners will
be the same as that for all other medical procedures.
Clause 6 Conscientious objection and duty to treat
Clause 6 retains the existing legislated right of individual
health practitioners to refuse to participate in treatment on
the basis of a conscientious objection. This clause applies to
individuals, not organisations, and to treatment, not to
others within an organisation who are not part of the clinical
treatment team.
The concept of conscientious objection is recognised in
various codes of conduct applying to the medical profession.
It is not a mere opinion or transitory view, but is a fixed or
firm belief.
Clause 6 provides that nurses are under a duty to assist in,
and medical practitioners are under a duty to perform, a
termination in an emergency situation where it is necessary
to save the life of the pregnant woman or prevent her
serious injury. Medical practitioners and nurses are not
excused from this duty on the basis of holding a
conscientious objection to the treatment.
A medical practitioner or nurse relying on a conscientious
objection to refuse to treat or assist in a termination during
an emergency risks professional sanctions.
Clause 7 Obligations on medical practitioners and counsellors
Clause 7 requires medical practitioners and counsellors who
hold a conscientious objection to refer a woman to another
practitioner or counsellor who does not hold such an
objection.
Failure to do so may result in professional sanctions for
medical practitioners, while counsellors face a maximum fine
of 250 penalty units. The different consequences for non-
compliance reflect that, unlike medical practitioners,
counsellors are not regulated by professional boards
established under national laws for regulating health
practitioners.
It will be up to the medical practitioner and counsellor to
decide how to refer neither will be obliged by this clause
to write a written referral detailing the patient's medical
history as one might do with a referral to a specialist
instead it will be sufficient if the woman is provided with the
name and contact details of an alternative provider who
does not have a conscientious objection.
This legislatively imposed obligation to refer balances the
legislatively imposed right to refuse to treat on the basis of a
conscientious objection. This will ensure the personal
beliefs of health care providers do not act as a barrier to
women seeking access to legal health services in a timely
manner. A referral obligation has been held by the
European Court of Human Rights not to infringe freedom of
conscience in Article 18 of the International Covenant on Civil
and Political Rights.
Clause 8 Woman not guilty of crime or offence
This clause ensures it is clear that a woman will not face
criminal or other legal sanctions for having or participating in
a termination. This is the case notwithstanding any other
Act or law.
Clause 9 Access zones
Clause 9 establishes 150 metre access zones around
premises at which termination services are provided.
It is an offence for a person to engage in `prohibited
behaviour' in an access zone. `Prohibited behaviour' is
defined and includes protesting in relation to terminations,
harassing, intimidating or interfering with a person, or
recording a person entering premises where terminations
are provided without that person's consent. It is also an
offence for a person to distribute or publish any such
recordings.
A police officer will have the power to search a person and
seize a recording and any equipment used to produce,
distribute or publish it.
A police officer who reasonably believes a person is
committing an offence can require a person provide their
name and address. The police officer may arrest a person
who refuses to comply or who provides details that are
false.
A person engaging in prohibited behaviour or distributing /
publishing a recording faces a maximum fine of 500 penalty
units and/or a maximum 12 month prison term.
Prohibiting protests in relation to terminations is
distinguishable from protests in relation to other matters as
protestors outside termination services interfere with a
person's right to privacy and access to legal medical services.
Clause 10 Proceedings
Clause 10 provides that a police officer, the Secretary of the
Department of Health and Human Services, or a person
authorised by the Secretary, are able to commence
proceedings for offences against the Act. Any such
proceedings must be instituted within 12 months of the date
of the alleged offence.
Clause 11 Infringement notices
Clause 11 sets out standard infringement notice provisions
that enable the making of regulations setting out which
offences under the Act may be enforced via an infringement
notice (ie an `on-the-spot' fine).
Clause 12 Regulations
Clause 12 sets out standard provisions for the making of
regulations under the Act.
Part 3 Criminal Code Act 1924 amended
Clause 13 This Part 3 contains amendments to the Criminal Code
Act 1924.
Clause 14 Interpretation
Clause 14(a) inserts the word `terminate' into the
interpretation and provides the same definition as set out in
the proposed Reproductive Health (Access to Terminations) Act.
Section 51 of the Criminal Code deals with the criminal
responsibility of persons performing surgical operations.
Clause 14(b) amends section 51 of the Criminal Code so it is
clear that a medical practitioner performing a surgical
termination with the woman's consent, in good faith and
with reasonable care and skill is not acting unlawfully.
Clause 14(c) removes the crimes of `abortion' and `aiding in
intended abortion'.
Clause 14 (d) removes the current criteria for a `legally
justified' termination, and the crime of `child destruction'.
That crime appears to regulate two distinct activities
terminations at a later gestation and assaults upon a
pregnant woman which results in the termination of her
pregnancy. This could be interpreted as applying to
scenarios previously covered by the crime of `abortion'. As
such it is appropriate and provides clarity to repeal this
provision and regulate these activities under distinct
provisions as set out in this Bill.
Clause 14(e) introduces section 178D which provides that it
is a crime for a person other than a medical practitioner or
the pregnant woman to terminate a pregnancy.
Clause 14(e) also introduces section 178E which provides it
is a crime for a person to terminate a pregnancy without the
consent of the pregnant woman.
This captures, for example, where an assault on a pregnant
woman results in the termination of her pregnancy.
It does not capture a medical practitioner who terminates a
pregnancy where the woman is incapable of consenting and
the termination is performed in good faith, with reasonable
care and skill, and is for the woman's benefit and reasonable
in all the circumstances (for example, during an emergency
situation).
Part 4 Guardianship and Administration Act 1995
Clause 15 This Part 4 contains an amendment to the Guardianship and
Administration Act 1995.
Clause 16 The amendment in Clause 16 will ensure the substituted
consent / decision-making framework in the Guardianship and
Administration Act 1995 is not affected by the Bill.
The Guardianship and Administration Act 1995 provides that
the Guardianship and Administration Board is the only
person who can decide whether a termination should be
performed on a person with a disability who is incapable of
giving consent because he or she is incapable of
understanding the nature and effect of the treatment (or
communicating this). An exception to this is where the
treatment is needed urgently to save the person's life or
prevent serious damage to the person's health.
Part 5 Miscellaneous
Clause 17 Clause 17 assigns the administration of the Act to the
Minister for Health.