In 2017, a young Sydney woman was convicted of the crime of procuring her own abortion. She had sourced mifepristone on the internet in an attempt to end an unwanted pregnancy at home.¹ In Cairns, in 2010, a young woman was also prosecuted for having taken abortion drugs she had obtained from overseas. In the Cairns case, the woman was eventually acquitted by a jury, but only after a protracted committal and trial process spanning many months.²

These cases are a stark reminder of the unsatisfactory state of abortion law in Australia and New Zealand. While six of the eight Australian jurisdictions have amended their laws since the 1970s, abortion remains in the criminal law across much of the country, as well as in New Zealand. Each jurisdiction has a different test for when abortion can be lawfully performed. The result is that abortion remains in a ‘grey zone’ as one of the most commonly performed procedures, but not part of mainstream gynaecological practice in the public health system, with the taint of criminality still lingering in the background.

Origins of abortion law

Australia and New Zealand inherited many of their laws from the UK. The early criminal law in both countries incorporated the provisions of the UK Offences Against the Person Act 1861. The law made abortion a crime, both for those performing it and for women undergoing it. Since this was the era of ‘backyard abortions’, there was perhaps reason to deter abortion providers, many of whom were unskilled and unscrupulous. However, while there may have been justification for these laws in the first place, this does not explain why their effects are still being felt in former British colonies, long after the UK reformed its own laws to bring them into line with modern medical practice.³

Law reform in the last 50 years

Because the criminal law is a State rather than a Federal power under the Australian Constitution, each of the six Australian states and two territories has its own criminal code, and each has dealt with the politics of abortion law reform in its own way. South Australia was the first to reform its abortion laws in 1969. Five other Australian jurisdictions – the Northern Territory (1974, 2006 and 2017), Western Australia (1998), the ACT (2002), Victoria (2008) and Tasmania (2013) – and New Zealand (1977), have since passed legislation to make abortion lawful in some circumstances. However, no two jurisdictions have adopted the same regulatory regime and each has a different test for when abortion can be performed lawfully. Table 1 provides a summary of the different laws across all jurisdictions and highlights the extent of the inconsistency.

Table 1. Summary of abortion laws in Australia and New Zealand.**

Australia									New Zealand
	Australian Capital Territory	Victoria	Tasmania	Northern Territory	Western Australia	South Australia	New South Wales	Queensland
Termination lawful on request		(up to 24 weeks)	(up to 16 weeks)
Termination lawful if doctor(s) satisfied of certain matters	not applicable	(up to 24 weeks, if appropriate in all the circumstances)	(up to 16 weeks, if risk to physical or mental health)	(up to 23 weeks, if appropriate in all the circumstances, or if emergency)	(up to 20 weeks for most grounds; after 20 weeks, if woman or fetus has severe medical condition)	(risk to life or health, fetal abnormality or emergency)	(risk to life or health: common law)	(risk to life or health: common law)	(up to 20 weeks for most grounds; after 20 weeks to save life or prevent serious permanent injury)
More than one doctor or a committee must be satisfied	not applicable	(after 24 weeks, at least 2 doctors)	(after 18 weeks, 2 doctors, including a specialist)	(after 14 weeks and up to 23 weeks, at least 2 suitably qualified doctors, except in emergency)	(after 20 weeks, at least 2 doctors from a panel)	(2 doctors, except in emergency)			(2 doctors, except in emergency)
Offences for unlawful termination	(but not for a doctor)	(but not for a doctor or other qualified person, or the woman)	(but not for a doctor or the woman)	(but not for a doctor or other qualified person, or the woman)	(but not for a doctor)
Conscientious objection by doctors recognised		(except in emergency)	(except in emergency)	(except in emergency)		(except in emergency)
Doctors who object to refer women to other provider
Counselling					(referral to counselling to be offered)				(to be advised of right to seek counselling)
Safe access zones established

** Taken from the Queensland Law Reform Commission’s Consultation Paper Review of Termination of Pregnancy Laws, December 2017, Appendix B.

In the abortion laws passed in Australia and New Zealand over the last 50 years, the key features are:

• Whether abortion can be lawfully performed based on the consent of the woman alone.
• If additional criteria must be satisfied, what are they? (For example, certification by a doctor that the abortion is ‘appropriate’ or is necessary to prevent risk to the life or health of the woman.)
• Are there additional criteria to be met for lawful late terminations? If so, what are they and from what gestational age do they apply?
• Does the law specifically permit health practitioners to refuse to perform abortions based on a right of conscientious objection and, if so, must they refer women elsewhere?
• Does the law establish ‘safe access zones’ around clinics in order to prevent women seeking abortion services from being harassed?

The test for lawful abortion

It is striking that only three of the jurisdictions reviewed here, Victoria, Tasmania and the ACT, recognise the right of a woman to make her own decision about whether to terminate a pregnancy, and even then gestational limits apply in two out of the three jurisdictions. In all the other jurisdictions, the decision-maker is the doctor, and abortions can only be lawfully performed if the doctor forms the view that the relevant legal criteria are met. In some circumstances, two doctors must certify that the termination is appropriate,⁴ or else two members of a government-appointed panel must give approval.⁵ In this era of patient autonomy, it is difficult to imagine this approach being tolerated in relation to any other medical procedure.

Regulation of late-term abortion

There are also widely different approaches to the regulation of late termination, including the stage of the pregnancy from which additional legal requirements should apply. The legislation in Victoria, Western Australia and Tasmania impose more onerous requirements for lawful termination from 24 weeks, 20 weeks and 16 weeks respectively. South Australia and the Northern Territory prohibit terminations after 28 weeks and 23 weeks respectively, except where necessary to save the woman’s life. In other jurisdictions, including New Zealand, there are no specific legal requirements for late terminations, but in these places (with the exception of the ACT), abortion at any stage of the pregnancy is potentially a criminal offence.

New South Wales and Queensland

New South Wales and Queensland have so far resisted all calls for abortion law reform, and still retain in their criminal law the original 19th century UK offences carried over at the time of Federation. These laws have rarely been used. In the small number of cases that have gone to court, judges have developed the common law principle that abortion can be lawfully performed, in New South Wales and Queensland, where a doctor reasonably believes the termination is necessary to prevent a serious risk to the woman’s life or physical or mental health.⁶ However, the application of this test depends upon the judgment of the court in each case, and therefore does not provide a certain or secure basis for determining when abortion is or is not lawful. It also provides no defence for a woman seeking to procure her own termination, as the recent prosecutions in both New South Wales and Queensland have demonstrated.

Right of conscientious objection

All the jurisdictions reviewed here, with the exception of New South Wales and Queensland, recognise the right of conscientious objection on the part of health practitioners who have a moral or religious opposition to abortion, but only three (Victoria, Tasmania and the Northern Territory) require referral of the patient to another health practitioner who does not share the same objection. This raises concern that the exercise of conscientious objection may limit access to abortion services in practice, particularly in rural and remote areas, where healthcare options are limited.

Safe access zones

The issue of safe access zones around premises providing abortion services remains an issue of controversy. Only four Australian jurisdictions have established such zones, and there is currently a case before the High Court challenging the constitutional validity of these provisions, reportedly based on alleged infringement of an implied right of freedom of political communication.⁷

Australian Commonwealth law

Adding to this tangled legal web are Commonwealth laws governing health funding and the regulation of therapeutic goods. The listing of mifepristone and misoprostol under the Australian Pharmaceutical Benefits Scheme, in 2013, greatly increased the affordability of these drugs. However, the provision of information about the availability of medical abortion is highly restricted as a result of provisions in the Therapeutic Goods Advertising Code, which specifically prohibit the advertising of drugs that have an ‘abortifacient action’.⁸ One can only wonder at the policy justification for preventing women from receiving full and detailed information about their reproductive health options.

Abortion law reform is needed

The patchwork of different legal regulation across nine different jurisdictions in Australia and New Zealand is confusing and irrational. Doctors attempting to navigate this terrain could be forgiven for feeling nervous about exposing themselves to the risk of criminal liability if they perform abortions. Even though prosecutions are extremely rare, it is unsatisfactory, in 2018, that one of the most commonly performed procedures should remain subject to complex and uncertain legal regulation, as well as the threat of criminality in some places.

Majority public opinion has consistently been shown to favour lawful access to abortion.⁹ It is time for the law in Australia and New Zealand to be brought into alignment with public opinion and accepted medical practice, so that abortion can become a full part of mainstream gynaecological care.

1. Director of Public Prosecutions (NSW) v Lasuladu [2017] NSWLC 11.
2. R v Brennan & Leach [2010] QDC 329.
3. Abortion Act 1967 (UK).
4. This is the case in South Australia and New Zealand, and for later term abortions in Victoria, Tasmania and the Northern Territory.
5. This is required in Western Australia.
6. R. v. Wald (1971) 3 DCR (NSW) 25; R v Bayliss and Cullen (1986) 8 Qld Lawyer Reps 8; CES & Anor v. Superclinics (Australia) Pty Ltd & Ors (1995) 38 NSWLR 47; R v. Sood [2006] NSWSC 1141.
7. www.theage.com.au/national/victoria/prolifers-draw-inspiration-from-bob-brown-in-defence-of-abortion-clinic-charges-20171028-gza36m.html.
8. Therapeutic Goods Advertising Code 2015 (Cth), Appendix 6, Part 1.
9. For a summary of recent surveys of community attitudes to abortion, see the Queensland Law Reform Commission Consultation Paper Review of Termination of Pregnancy Laws, December 2017, pp27-28.