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Changes to Western Australia's Abortion Law in 1998
By Dr Kylie Stephen

In February 1998 it was announced that two Perth doctors were to be prosecuted under the Western Australian laws that make abortion a crime. These were the first charges laid against medical practitioners under those laws in Western Australia in over 30 years. The political events that followed this decision ultimately culminated in the passage by the Western Australian parliament of legislation introducing what is claimed to be the most liberal abortion law in Australia. The legislation originated as a Private Member's Bill introduced into the upper house of the Western Australian parliament by Cheryl Davenport MLC (ALP). The legislation passed, with amendments on 21st May 1998.

Abortion in Western Australia (WA): An Overview

Statutory provisions in every State and Territory (except now Western Australia) make it a crime 'unlawfully' to administer any poison or noxious thing, or use any instrument or other means, with intent to procure miscarriage. The wording of these statutory provisions is based directly on legislation enacted in England in the nineteenth century. The crime of 'unlawful abortion' may be committed by the pregnant woman herself (except in the Northern Territory), by the person performing the abortion, or by anyone else who assists. The legal test for when an abortion is not unlawful, however, is different in each State and Territory of Australia. Abortion across Australia is governed by three sets of laws: First, the laws that create the crime of 'unlawful abortion'. Secondly, the laws that create the crime of 'child destruction.' Thirdly, the law of homicide.

Sections 199-201 of the WA Criminal Code prohibited anything done 'unlawfully' with intent to procure a miscarriage. Section 259 allowed anyone to perform a surgical operation for the 'benefit' of the patient, or 'upon an unborn child for the preservation of the mother's life,' if the performance of the operation was 'reasonable, having regard to the patient's state at the time and to all the circumstances of the case,' and provided the procedure was carried out in good faith and with reasonable care and skill.

There were no judicial rulings explaining the meaning of 'unlawful' abortion in Western Australia and interpreting sections 199-201 and section 259 of the Western Australian Criminal Code in this context. It was, however, widely assumed that the meaning of 'unlawful' abortion advanced by courts in Queensland, adopting the legal test that applies in Victoria, represented the legal position in Western Australia. This legal test was set out in the landmark 1969 Menhennitt ruling in Victoria which confirmed that abortion is legal in cases where the woman's physical and/or mental health is at risk, or continuation of the pregnancy will cause economic or social suffering to the woman.

The separate crime of 'child destruction' only applies to abortions performed late in pregnancy. It is not clear, however, whether this crime only applies to abortions performed very late in pregnancy, when a woman is about to go into labour, or whether it may protect any 'viable' foetus. Section 290 of the Western Australian Criminal Code provides that it is a crime, 'when a woman is about to be delivered of a child,' to prevent that child from being born alive. The penalty for violating section 290 is life imprisonment. Comments by Murray J in the case Martin v. The Queen reflected the opinion that section 290 potentially applies from the twenty-fourth week of pregnancy.

The law of homicide can only apply in situations where a child is born alive. Section 271 of the Western Australian Criminal Code, provides that a person is deemed to have killed a child (for the purposes of the relevant homicide offences) when that child dies in consequence of that person's behaviour 'before or during its birth.'

A Crime of Unlawful Abortion?

On the 10th February 1998 a decision was taken by the Belmont police and the Director of Public Prosecutions in WA to lay charges against two Perth doctors, Drs Victor Chan (abortionist) and Ho Peng Lee (anaesthetist) of Nanyara Medical Group, under section 199 of the WA Criminal Code in respect of an allegedly unlawful abortion performed in November 1996.

The story behind the arrest of the doctor and the anaesthetist over the performance of an abortion was complicated to say the least. The actual abortion operation happened in November 1996. There weren't any problems with the operation, the woman concerned simply requested that she be able to take home the foetal matter/products so that she could bury them. The woman took home the foetal products and put them in the fridge. Her son came home, looked in the fridge and asked what it was. Mum said words to the effect of "it's a dead baby and I'm going to bury it".

Unfortunately and unbeknownst to the woman, her son went to school and told this in 'news' time to his class. The teacher, concerned by this tale, reported the family to the WA police. The WA police eventually questioned the woman during the early to middle part of 1997; they then interviewed the counsellor and the doctors at the clinic where the abortion was performed. At that time the police were considering charging the woman. By December 1997, however, the police were considering charging the counsellor, because it was she who handed over the foetal products. The doctors, in fact, knew nothing about that side of events. Finally, the police decided to charge the doctors in early May - 18 months after the actual operation happened.

In charging the two doctors, the WA Director of Public Prosecutions (DPP) at the time of the incident, John McKechnie QC, took a narrow interpretation of the law stating that abortion would only be permitted to save a woman from imminent risk of death. Thus, justifying the WA prosecutions, the DPP offered the opinion that abortion is only legal in WA in life threatening situations.

Attorney-General Peter Foss said he would use his role as first law officer to maintain the status quo of the past 20 years, challenged by the charging of the two Perth doctors for attempting to procure an abortion. He intervened after hospitals and clinics cancelled abortion lists, the Australian Nursing Federation (ANF) advised nurses to refuse involvement in any abortions and a 24-year-old woman was treated in a Perth casualty ward after apparently attempting to terminate her own pregnancy. Doctors in Western Australia were subsequently given a government indemnity against prosecution for performing most abortions. Australian Medical Association state president Dr Scott Blackwell welcomed the assurance, but stressed that doctors still felt changes were needed in the law, the strict interpretation of which meant doctors faced a maximum of 14 years' jail for performing an abortion in a non-life threatening situation.

The events surrounding the Doctors, however, were to be superseded by the events in the WA Parliament to rectify the uncertainty. It was at this point that two bills were introduced into the Western Australian Parliament when it resumed on March 10th 1998, one of which was said to contain provision for Australia's most progressive abortion laws.

The Progression of the Davenport Legislation Through Parliament

In the Legislative Council (upper house), the Davenport Bill, which started as an abortion law repeal bill, was passed 22 to 11 (March 19th 1998). It proposed that:


  • most references to abortion be removed from the criminal code by repealing sections 199, 200, 201. Section 259 would remain;
  • regulations and conditions on the termination of pregnancy be placed into the WA Health Act:
  • Unqualified medical practitioners who perform terminations are liable to a $50000 fine or 2 years jail;
  • Medical Practitioners are able to justifiably perform an abortion:
    • if the woman gives her informed consent after counselling
    • if she will suffer serious personal, family, social or economic consequences if the abortion is not performed and she gives informed consent
    • if her physical or mental health is in serious danger if abortion is not obtained and she gives informed consent
    • if the continuation of the pregnancy is causing serious danger to the mental or physical health of the woman and she gives informed consent.

  • an abortion performed after 20th week of gestation must have the approval of two approved medical practitioners who agree that either the mother or the foetus has a severe medical condition.

In the Legislative Assembly (lower house) the Foss Bill, which started as an abortion law reform bill, was passed 31 to 19 (there were six abstentions, including the Premier and the Health Minister who were not in the chamber during the vote). Under the Foss Bill, abortion would remain within the criminal code. Under what became known as the Foss Four Point Plan, abortion would be legal if:

  • Pregnancy is causing serious danger to the woman's physical or mental health;
  • serious danger to the woman's physical or mental health will result if miscarriage is not procured;
  • the woman will suffer serious personal, family or social consequences if the miscarriage is not procured;
  • the women has given her informed consent: Informed consent existing once a doctor who is independent of the doctor performing the abortion has explained the medical risks of abortion and offered to refer her for counselling.

Further, the Foss bill set out that the parents of a girl under 16 seeking an abortion must be informed prior to the procedure. An abortion performed after the 20th week of gestation must have the approval of two government-approved medical practitioners who agree that either the mother or the foetus has a severe medical condition. Finally, doctors and nurses can refuse to take part in performing abortions.

Activists of the Association for the Legal Right to Abortion (WA) acknowledged that the attachment of abortion provision to the WA Health Act was not ideal but the ALRA argued that the Davenport bill represented a vastly better outcome for women than the Foss bill. A deadlock ensued, however, between the two sets of legislative proposals. Subsequently, it was thought that the best way to get the Davenport legislation through Parliament (lower house) and to get abortion provisions repealed from the Criminal Code, was to adopt regulations which would contain only part (d) of the Foss four point plan. Part (d) specifies that procuring the miscarriage of a woman is justified if, and only if the woman has given 'informed consent', i.e. consent given by the woman after she has received counselling about the consequences of an induced miscarriage.

On Thursday 2nd of April the two separate bills dealing with abortion were passed in their respective houses of the WA Parliament. On the 9th April 1998 the Foss Bill was ruled out of order in the Upper House by the President on the basis that it was too similar in content to the Davenport Bill. This left the Davenport (Repeal) Bill as the only bill being debated. The Davenport Bill, after endless proposed amendments and debate, passed the Lower House on Thursday 5th May (32- 22). In the meantime, the doctors went to court on Thursday 7th May as it was only at this point the charges against them were finally laid. The doctors elected to go to a preliminary hearing, which was set down for November 25-27th.

The amended Repeal Bill no longer a repeal bill but a reform bill returned to the Upper House on 19th May. The Acts Amendment (Abortion) Act 1998 (WA) was passed by the Western Australian Parliament on 21st May 1998 (in the Legislative Council 24-9). It repealed old sections 199-201 of the Western Australian Criminal Code and replaced them with a new section 199. That new section provides that it is unlawful to perform an abortion unless the abortion is performed by a medical practitioner 'in good faith and with reasonable care and skill', and the performance of the abortion is justified under new section 334 of the Health Act 1911 (WA).

An abortion will be justified under section 334 of the Health Act 1911 (WA) if one of four grounds have been satisfied. The first ground essentially allows abortion on request. It allows abortion if the pregnant woman has given 'informed consent.' This is defined to mean 'consent freely given by the woman' after a counselling requirement has been satisfied. That counselling requirement demands that an independent medical practitioner, neither the doctor who performs the abortion, nor any doctor who assists in performing the abortion, has done three things:

  • 'properly, appropriately and adequately' provided the pregnant woman with counselling about the 'medical risk' of abortion and of carrying a pregnancy to term;
  • offered to refer the pregnant woman for 'appropriate and adequate counselling' about 'matters relating to' abortion and to carrying a pregnancy to term; and
  • informed the pregnant woman that 'appropriate and adequate counselling' will be available to her should she wish it after the abortion is performed or after she carries the pregnancy to term

If the pregnant woman is aged under 16 and is being supported by a parent or guardian, she will not be regarded as having given informed consent unless that person has been told about the proposed abortion, and that person 'has been given the opportunity to participate in counselling process consultations between the woman and her medical practitioner as to whether the abortion is to be performed.'

The other three grounds under which an abortion is permitted are more restrictive than the first, but do not impose any legal requirement that the pregnant woman be offered counselling. The second ground is that the pregnant woman 'will suffer serious personal, family or social consequences' if the abortion is not performed. The third ground is that 'serious danger to the physical or mental health' of the pregnant woman will result if the abortion is not performed. The fourth ground is that the pregnant woman's pregnancy 'is causing serious danger to her mental health.'

Any one of these four grounds will only legally justify an abortion performed up to 20 weeks of pregnancy. After that time, an abortion cannot be performed lawfully unless two doctors agree that 'the mother or the unborn child' has a 'severe medical condition [that] justifies the procedure.' These two doctors must be members of a panel of at least six doctors appointed for this purpose by the Minister. Additionally, a late term abortion must be performed in a facility approved for these purposes by the Minister.

The new law explicitly provides that no 'person, hospital, health institution, other institution or service' is under a duty to participate in the performance of any abortion.

Importantly, the new legislation also changes the legal consequences of performing an unlawful abortion. The most onerous penalty is imposed on abortionists who are not medical practitioners. They will be liable to imprisonment for five years, unless their behaviour comes within the terms of new section 259 of the Criminal Code. That section replaces the defence in the old section 259, discussed above. It is identical to that old section except that it now refers to 'surgical or medical treatment' rather than just 'surgical treatment'.

Doctors who perform abortions otherwise than in accordance with the new Western Australian law will no longer be liable to imprisonment: a fine of $50 000 is imposed. Women seeking or obtaining abortions are no longer subject to any legal sanction in Western Australia.

The Western Australian legislative reforms additionally require the Western Australian Health Minister to conduct a review of 'the operation and effectiveness' of these new abortion provisions three years after the new legislation comes into effect.

Neither section 290 of the Western Australian Criminal Code, on the crime of 'child destruction' nor section 271 on the law of homicide were amended in the recent legislative changes to the abortion laws in that State.

When Repeal Is Not Really Repeal

In the immediate aftermath of the parliamentary debates, the new legislation was hailed in the media as the most liberal abortion law in Australia. Doctors announced that while the legislation isn't exactly what they wanted, they could live with it. It was seen as ultimately better for WA women in that it removed abortion from the criminal statutes and, whilst regulations are still there in a Health Act, they do not carry with them the penalties/threats to women and doctors and other health workers which it being in the criminal statutes does.

The changes, however, did not go without some criticism. The negative side to having mention of abortion in the Health Act regulations was seen to be that it still singled out this procedure which only women need access to, and did not treat it like any other medical procedure. In essence then, the Bill was not an abortion-on-demand outcome nor was it the "most liberal laws" in Australia as claimed. Rather it was a massive set back for the view that abortion is a woman's right to choose.

While it should be acknowledged that amendments to the bill were so substantive that the historic repeal bill originally moved by Cheryl Davenport and carried with an overwhelming majority (22 to 11) in the early stages of Parliamentary debate in mid-March 1998, is now unrecognisable, it has been suggested, that the Davenport Bill was never really a true repeal bill. While it proposed a partial repeal of the provisions in the WA Criminal Code which relate to abortion, that is, Sections 199, 200 and 201, it also proposed from the very beginning to leave Section 259 (which also partly relates to abortion) in the Criminal Code.

Five specific points can be made in relation to the new abortion legislation in Western Australia.

First, the new Section 199 of WA Criminal Code could be seen in effect to bolster the power of the medical profession over women's bodies and lives. The proposed new Section 199 of the WA Criminal Code closes off the possibility of nurse practitioners such as midwives learning how to perform abortions. Further, sub-section 6 of the new Section 334 to the WA Health Act introduces a two-doctor hurdle for all WA women who are trying to access abortion services. Women will have to go to presumably a local GP or a family planning doctor who is required to "properly, appropriately and adequately" explain the procedure and advise of the option of counselling before they can go to a clinic. Or clinics will have to employ a second/third doctor who sees the women when they first arrive at the clinic and who does not perform the abortion and does not assist in the abortion. The 'two doctor hurdle' reinforces the medical profession's power over women's bodies and lives and the power of the state over women's bodies and lives by determining the material conditions under which women will have access to abortion services It reinforces the medical monopoly on abortion services.

Secondly, in complete contradiction of the above analysis of the new Section 199, however, the new Section 259 offers a possible defence for anyone who performs "surgical or medical treatment...to an unborn child for the preservation of the mother's life'. Because the proposed new Section 259 talks of "a person" not "a medical practitioner" it possibly offers a defence to anyone who "administers...surgical or medical treatment to an unborn child for the preservation of the mother's life"/performs an abortion, provided "administering" also means "performing".

Thirdly, key differences between the old Section 259 and the new Section 259 is the use of the word "administering" rather than "performing"; the use of the words "surgical or medical treatment" rather than "a surgical operation"; and the use of the words "to an unborn child" rather than "upon an unborn child". This has led to concern that further manipulation by anti-abortion activists could take place in relation to the words "surgical or medical treatment.... to an unborn child". They could suggest that performing surgery on a foetus to save the foetus at the expense of the woman is just as possibly meant by the legislation as the performance of abortion.

Fourthly, it is noteworthy that the new legislation requires an abortion to be "justified", a word which so far has not appeared in any State/Territory Crimes Act or Criminal Code in relation to abortion. The Davenport Bill's consequential amendments to the WA Health Act 1911 to outline the circumstances in which 'informed consent' takes place pose key problems for women. The key provision for 'informed consent', subsection 5 (a) defines "informed consent" as being where " a medical practitioner has properly, appropriately and adequately provided her with counselling about the medical risk of termination of pregnancy and of carrying a pregnancy to term". This may also allow manipulation of the legal language by anti-abortionists over the meaning of the words "properly, appropriately and adequately"

The fifth and final point of the new legislation relates to sub-section 7 of new Section 334 of the WA Health Act 1911 which restricts "justifiable" abortions to the 20th week of pregnancy and, after that, two medical practitioners have to approve a termination and it can only be if the woman or the foetus "has a severe medical condition". Of equal concern is the fact that performance of a late term abortion, if approved as above, can only be done "in a facility approved by the Minister for the purposes of this section". Ministerial approval of late term abortion facilities (rather than simply complying with any other day surgery legislation for example) should prove to be difficult, especially when the Minister is known to be opposed to abortion.

Perhaps an unrealistic expectation has also been created whereby for under 16 year olds a "custodial parent" has to be informed and, the custodial parent has to be "given the opportunity to participate in a counselling process and in consultations between the woman and her medical practitioner". Young women under the age of 16 may find it difficult to discuss the abortion with their parents. While the new legislation permits a dependant minor to "apply to the Children's Court for an order that...a custodial parent...should not be given the information" that the minor is seeking a termination of pregnancy, this is an even unlikelier scenario than the first, and therefore an obstacle to abortion provision for young women

The Pro Choice Campaign: Offence or Defence?

So how did this attempt to 'repeal' abortion legislation in WA turn into the 'reform' of that legislation only? There is many a lesson to be learned from the conduct of, and in the strategies and tactics adopted, during the debate in Western Australia.

The pro-choice movement saw it as an 'historic' win for women of Australia, and the pro-choice movement of Australia, as it was the first time they had gone on the offensive in any state and been successful! Every other time they had wins these wins were in defeating an attack or in reacting to an attack. Later, however, reservations were expressed about the idea that the pro-choice movement should actively campaign for the repeal of abortion laws on the basis that while repeal is desirable, entering into an 'offensive' attack on the legislation can be risky. You could always end up with something far worse.

A prominent abortion activist in WA, Margaret Kirkby, argued that activists had campaigned for several years by stating that 'abortion is illegal' in Western Australia and that the only legal defence was for "the preservation of the mother's life. She does not agree with that assessment of the law on abortion in WA as it stood before the Davenport Bill.

Kirkby suggested that the campaign for 'repeal' failed because the pro-choice movement accepted the terms of argument/debate put forward by the DPP that:

  • the law was untested and uncertain;
  • that abortion was only legal when the woman's life was in danger;
  • majority of WA abortions would in fact be illegal if tested

This did not allow the pro-choice movement to raise the question of why abortion should be singled out in a specific piece of legislation anyway? Further, she argued that whilst the practice of the law may differ from what the 'letter of the law' in the provisions in the Health Act/Criminal Code, the nature of the debate and the campaign in WA places a great deal of pressure on activists and providers to ensure no opportunities are opened up for further attacks and that those new laws are followed to the "t".

Natasha Cica argues instead that the legal situation in WA pre-Davenport was uncertain. The law in WA had never actually been tested. There certainly was a long period where there was some kind of formal or informal policy of not prosecuting providers or women under the old WA abortion laws. That 'policy' was not, however, of any legal force. It could have changed at any moment - and it did, for whatever reason, when the DPP announced he would go ahead and charge the two doctors at the beginning of this year. Indeed the Gender Bias Taskforce Report, had stated that the position in WA was at best ambiguous (paragraph 91 page 196 of the report: "the current situation creates uncertainty and the real fear that at any time abortion services currently available could be curtailed"). In light of this, the position by the ALRA in not taking Crown Law or the DPP to task on their legal interpretation was a well founded position. The DPP exploited the fact that there had been no judicial clarification of the law in that State by asserting that, in his view, abortion was only lawful to save the life of the pregnant woman. The DPP's opinion was in turn picked up uncritically by the media and presented as 'the law.' This acted to make anti-choice arguments look more established and legitimate. This illustrates how confusion about what the law actually says can be used to undermine pro-choice arguments in the debate for legislative change. On this basis the WA repeal debate turned into the WA reform bill as the result of activities by anti-choice activists.

Conclusion

The Davenport Bill in its new form has, apparently, not "clarified" the law on abortion in WA at all, but perhaps it has created even more opportunities than there were before for anti-abortionists to attack WA women's access to abortion. It is no wonder that the anti-abortion politician from WA, Phillip Pendal (an Independent) is quoted in the Sydney Morning Herald on 22/5/98 as saying, "over time, the legislation would become a framework to implement greater restrictions'.

The case against Drs Victor Chan and Ho Peng Lee of Nanyara Medical Group was heard at on Thursday 30th July 1998 at the Perth Central Law Courts. The charges against doctors Chan and Lee for the procurement of an abortion in November 1996 were dropped by the WA Director of Public Prosecutions several months after the new laws had been adopted. This concluded the saga that began with the doctors being charged in May 1998, causing a crisis in abortion provision and eventually leading to the new abortion legislation in WA.
 
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