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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
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Bills

Termination of Pregnancy Bill

Committee Stage

In committee (resumed on motion).

New clause 6A.

The CHAIR: We are in committee on the Termination of Pregnancy Bill. At the moment, the committee is considering amendment No. 1 standing in the name of the member for West Torrens, which is the insertion of new clause 6A. We have had some considerable debate on that already, an hour, in fact. Unless there is any further debate on that, I am looking to put the motion or the amendment. The question before the chair is that amendment No. 1 standing in the name of the member for West Torrens, which would insert new clause 6A, be agreed to.

The Hon. A. Koutsantonis' new clause negatived.

New clause 6A.

The CHAIR: We have, since this morning's sitting, received another amendment standing in the name of the member for Davenport, and it relates particularly to those issues we have most recently been debating. It, too, looks to insert a new clause 6A. I am going to invite the member for Davenport to move that amendment.

Mr MURRAY: I move:

Amendment No 1 [Murray–1]—

Page 4, after line 37—Inserted clause 6A—delete inserted clause 6A and substitute:

6A—Care of person born after termination

(1) This section applies if a termination results in a person being born.

(2) Nothing in this Act prevents the medical practitioner who performed the termination, or any other registered health practitioner present at the time the person is born, from exercising any duty to provide the person with medical care and treatment that is—

(a) clinically safe, and

(b) appropriate to the person's medical condition.

(3) To avoid doubt, the duty owed by a registered health practitioner to provide medical care and treatment to a person born as a result of a termination is no different than the duty owed to provide medical care and treatment to a person born other than as a result of a termination.

In moving this amendment I make the point that it is a word-for-word copy of the operative parts of the New South Wales legislation. I am happy to take questions regarding it.

The CHAIR: I assume we have circulated this amendment? Everybody has seen it? Yes. The member for West Torrens.

The Hon. A. KOUTSANTONIS: As we heard in the earlier debate, the Attorney-General told the committee that amendments or clauses in bills that allowed medical intervention in relation to persons born alive during a termination did exist in foreign jurisdictions but none here in Australia. That was false. They do. I want to commend the member for Davenport for moving this amendment. My question to him is: is it his understanding that this amendment, which is identical to clause 11 in the New South Wales legislation that is statute, is consistent with the principles of this current bill we are debating?

Mr MURRAY: I thank the member for West Torrens for his question. In answering, I would make the point that prior to the break I asked the Attorney-General's view on what is now subclause (3) of this new clause 6A and in particular the extent to which it was in any way philosophically different from the provisions of the act, the answer to which was that it was in no way different. Partly as a consequence of that answer and the indication that this is entirely consistent with the act itself, I have elected to take the entire clause, which is operative at the moment in the New South Wales jurisdiction, and seek to have it applied here.

In summary, this is, I am reliably informed by the Attorney-General—the operative parts that I asked about earlier—consistent with the act. To be clear, it is different from the previous amendment we discussed in that it does nothing other than impose a duty for a person born as a result of a termination, which is no different from the duty owed to provide medical care and treatment to a person born other than as a result of a termination. There is no compulsion other than a duty to provide the same level of care for a person born from a termination as compared with the same duty owed to a person arising from or other than as a result of a termination.

It is materially different in terms of what it imposes by way of obligation and it is consistent with the provisions within the act and, in particular, it is consistent with the primary motivation of the existing act, and that is to refer to medical expertise. Rather than seeking to prescribe actions, it is seeking to do nothing other than reiterate duty of care however that is perceived by the medical fraternity.

The Hon. V.A. CHAPMAN: I also wish to speak about the proposed amendment 110(18) standing in the name of the member for Davenport. This had been foreshadowed in some earlier discussion on this bill. I agree that the new clause 6A proposed is consistent with the provision for the duty of care terms in the New South Wales act. I confirm again, notwithstanding the member for West Torrens' statement that in some ways this results in a misleading statement from me, that I completely and utterly reject that. This is an entirely different motion. The member for Davenport is quite correct in stating that the New South Wales provision outlines the duty of care expectation to not be derogated from. He is absolutely correct.

The assertion, which the member for West Torrens continues to present, is that in some way it has been completely incorrect to suggest that when I say to members of the house that the proposal that he presented and which was lost was wrong. In my assertion, there is no replication of mandatory obligations in this area around Australia, and I maintain that. It is in fact the member for Davenport who is correct in affirming that, when he has read the act in New South Wales, it is actually a confirmation of their continuing obligation in relation to a professional's duty of care; so he asked that it be considered.

When we dealt with this in debate, I had a quick look at it during the luncheon break. I indicate that we have not had the opportunity to consult on it in relation to the act it has come from. I am not quite sure whether we need to deal with it differently, but I want to bring to the attention of the member that we have already identified this very issue in the bill that has been presented here to the parliament under clause 13(4). It is different wording, and I will read it to the house. Under miscellaneous provisions—Conduct and performance of registered health practitioners—it sets out a number of obligations in that regard. Subclause (4) states:

(4) This Act does not limit any duty a registered health practitioner has to comply with professional standards or guidelines that apply to health practitioners.

I hope that is some indication that, even in our bill, we have made provision for that conduct of practitioners to comply with their obligations, and that of course includes their duty of care and in fact all the guidelines and obligations. I think there is little work to do in relation to the proposal before us, but I confirm that, whilst I consider we have covered it in the current bill, I utterly reject the assertion that continues to be asserted by the member for West Torrens and ask members who are following this debate to appreciate the clear understanding that the member for Davenport has, which is the correct one—that is, it is a confirmation of obligation of duty.

The Hon. A. Koutsantonis interjecting:

The CHAIR: Order!

The committee divided on the new clause:

Ayes 25

Noes 21

Majority 4

AYES
Bell, T.S. Brock, G.G. Brown, M.E.
Cowdrey, M.J. Cregan, D. Duluk, S.
Ellis, F.J. Harvey, R.M. Knoll, S.K. (teller)
Koutsantonis, A. Malinauskas, P. Michaels, A.
Mullighan, S.C. Murray, S. Odenwalder, L.K.
Patterson, S.J.R. Pederick, A.S. Piccolo, A.
Picton, C.J. Power, C. Sanderson, R.
Speirs, D.J. Tarzia, V.A. Teague, J.B.
van Holst Pellekaan, D.C.
NOES
Basham, D.K.B. Bedford, F.E. Bettison, Z.L.
Bignell, L.W.K. Boyer, B.I. Chapman, V.A. (teller)
Close, S.E. Cook, N.F. Gardner, J.A.W.
Gee, J.P. Hildyard, K.A. Hughes, E.J.
Luethen, P. Marshall, S.S. McBride, N.
Pisoni, D.G. Stinson, J.M. Szakacs, J.K.
Whetstone, T.J. Wingard, C.L. Wortley, D.

Mr Murray's new clause thus inserted.

New clause 6A.

The Hon. V.A. CHAPMAN: I move:

Amendment No 1 [AG–2]—

Page 4, after line 37—After clause 6 insert:

6A—Requirement for information about counselling

(1) Before performing a termination on a person under section 5, a registered health practitioner must—

(a) assess whether or not it would be beneficial to discuss with the person accessing counselling about the proposed termination, and

(b) if, in the practitioner's assessment, it would be beneficial and the person is interested in accessing counselling, provide all necessary information to the person about access to counselling, including publicly-funded counselling.

(2) Before performing a termination on a person under section 6, a medical practitioner must provide all necessary information to the person about access to counselling, including publicly-funded counselling.

(3) A registered health practitioner may, in an emergency, perform a termination on a person without complying with subsection (1) or (2).

This proposal introduces a requirement for information about counselling. Again, having listened to the contribution of members and, indeed, the issue raised in some other amendments, this amendment has been drafted to facilitate the particulars of obligation.

I will outline how it is to be effected and the benefit of it, if I may. In providing an alternate amendment to that of the member for Playford, the effect of the amendment is to require that a medical practitioner, before performing a termination under 22 weeks and six days, (1) assess whether it would be beneficial to discuss with the person accessing counselling about the proposed termination and (2) if the practitioner's assessment is that it would be beneficial and the person is interested in counselling, provide all necessary information to the person about access to counselling, including publicly funded counselling.

Further, before performing a termination on a person who is more than 22 weeks and six days pregnant, the amendment provides that a medical practitioner must provide all necessary information to the person about access to counselling, including publicly funded counselling. The amendment is identical to section 7 of the New South Wales Abortion Law Reform Act 2019. Importantly, it promotes and respects patient decision-making and autonomy, while also ensuring that the issue of counselling is raised in those scenarios where a medical practitioner considers it would be beneficial.

The member for Playford's proposed amendment would mandate the provision of information about access to counselling to be offered to a person before performing any termination, and it removes the discretion of the medical practitioner to assess whether it would be beneficial to discuss access to counselling with a woman who may be in the early stages of pregnancy.

In short, the obligation here is mandated as such after the 22 weeks and six days, which certainly the bill proposes and I think the parliament has endorsed and is deserving of having a very different threshold of operation after 22 weeks and six days and, in fact, has already moved to accept the two-doctor requirement and also to wrap around that some very prescriptive terms. I think the parliament to date has expressed its view that we do treat this in a different way and has done so. Therefore, this proposal is to acknowledge both that and also that there ought to be some discretion in the under 22 weeks and six days scenario. That is the only difference.

I thank the member for Playford for giving consideration to this matter. Several members have raised it with me, but he crystallised his in an amendment and I thank him for that. As I said, others have raised with me. I have seen some paper document information about counselling, some of which is a little bit outdated, from some members.

Nevertheless, it is fair to say that I have not explored or identified what might be available online for myriad counselling services. Again, I do not think either the member for Playford or any other member has raised with me a suggestion that we be specific as to what information is provided, only that it be considered and that there be a provision of the opportunity to refer to counselling if appropriate under 22 weeks and six days and a mandated option of advice over 22 weeks. Again, I thank members for their contributions and seek support of this position.

The CHAIR: Thank you, Attorney, for that information. You were dealing with your amendment and you were foreshadowing Mr Brown's, who now will have the opportunity to speak to that.

Mr BROWN: I do thank the Attorney for trying to take on board what I raised in my other amendment, which I know was to a different clause. I also believe that her amendment does largely incorporate the spirit of what I was trying to achieve. However, unfortunately, I must say I am not satisfied by the fact that the provision of information regarding where someone may locate counselling is not mandated. It is a decision made by the medical practitioner as to whether that information is provided. Therefore, I would seek to amend the Attorney's amendment so that that information must be provided to everyone who is seeking a termination.

The CHAIR: For clarification, member for Playford, you have three amendments before the committee. Are you moving them en bloc?

Mr BROWN: Yes. I move:

Amendment No 1 [Brown–2]—

Page 4, after line 37—Inserted clause 6A(1)—delete subclause (1)

Amendment No 2 [Brown–2]—

Page 4, after line 37—Inserted clause 6A(2)—delete 'under section 6, a medical practitioner' and substitute:

, a registered health practitioner

Amendment No 3 [Brown–2]—

Page 4, after line 37—Inserted clause 6A(3)—delete 'or (2)'

The effect of these amendments, for those who are trying to follow the debate, is effectively to remove the first option, which is that a registered health practitioner has the option of assessing whether basically they should provide someone with counselling information if it is a termination that is occurring at pre 22 weeks and six days.

I have never thought this was a term I would use, but I think it is unnecessarily bureaucratic to have someone have to make that decision. We are simply talking about the provision of where you may find counselling. It is not the actual counselling itself. The health practitioner does not provide the counselling. It is simply a matter of the health practitioner informing people about where they can go to get counselling, including government counselling.

I think that could be done simply by giving them a pamphlet from the Pregnancy Advisory Centre. There are lots of ways it could be achieved. We are not talking about trying to put barriers in people's way here. All we are doing is making sure that everybody who seeks a termination gets provided with where they can find counselling.

The Hon. R. SANDERSON: I also have a couple of clarification points. I, too, have an amendment, but it does not come up until clause 8A, regarding the mandatory provision of information about not only counselling but the possible health effects of an abortion, the possible mental health effects and the opportunity, if you should have your pregnancy to term, of adoption and how you would find out about adopting a baby. The information I saw from the ACT also had information about accessing Centrelink payments if you are a single mother or a single parent.

My aim is that everybody who inquires with a doctor, hospital or wherever they might go is given fulsome information, which could include where to get counselling but also all the effects of their decision, how that may affect their life, their body and their mental health, as well as the options should they not go ahead so that they are in full possession of all the information before they make what is a very serious decision. I do not believe that this would cover that off, so I would still have to move my amendment if it were the way it is.

The CHAIR: Yes, you are foreshadowing that, Minister for Child Protection, but we are dealing with the member for Playford's amendment to the amendment.

The Hon. S.C. MULLIGHAN: I rise to speak on the member for Playford's amendments to what has been filed by the Attorney. I am grateful for the efforts of the Attorney and also of the member for Playford and the member for Adelaide to address this issue of counselling. If I could hazard a guess, I would suggest that we all seem to be generally in favour of having appropriate counselling offered or made available to somebody who is either seeking a termination or perhaps consulting a medical practitioner about the possibility of a termination. All we are really talking about now is how best that should be done.

Part of what the Attorney has placed in her amendment, which I think is a very good idea that perhaps we might not have otherwise thought about, is that obviously in the case of an emergency that is likely not to be relevant or required, so she has a provision in her amendment. I am attracted to what the member for Playford is saying, namely, that, rather than a medical practitioner forming their own assessment about whether providing access or information regarding counselling services would be beneficial, I think we can probably all agree that just being offered that as a matter of course would be beneficial for somebody who is engaging with their doctor about this sort of issue.

So, rather than a two-step process where it is left up to the doctor or the medical practitioner to determine whether counselling is beneficial, I think we all agree that counselling is going to be beneficial. In that regard, I am more than happy to support what the member for Playford is offering, and I am pretty interested in what the member for Adelaide is saying as well because I think the member for Adelaide is suggesting that the offer of counselling casts the net a little bit wider about some of the issues that should be canvassed in that offer of counselling. I think that is only a good thing.

Depending on whether we can work through the relevant paperwork and process, I look forward to supporting what the members for Bragg and then Playford and then Adelaide are all suggesting on counselling.

The Hon. Z.L. BETTISON: I rise because I am particularly interested in the role of counselling to be offered, and I support the member for Playford's intention. I guess my question is about counselling and its availability here in South Australia. While we are talking specifically about providing potentially a pamphlet or guidance on where that can be sought, I want to understand how we support counselling and what is actually available, particularly if it is going to be—

The Hon. V.A. Chapman: Mandated.

The Hon. Z.L. BETTISON: Or encouraged.

The Hon. V.A. CHAPMAN: I cannot be specific as to what service. I do not have that information with me. I will try to get that before we conclude the debate because, as I said, I think it is clear that there is an appetite to have a referral to counselling. We certainly have looked at the availability in relation to advice that comes from the health department, which is dealing with another matter on conscientious objection, to have the information available and where to go.

That is in relation to the provision of the service but, as to the counselling, I do not have that immediately with me, but I will certainly see if that can be available. Clearly, we do have some counselling. We know already at the Woodville facility, for example, there is material available and in fact counselling given. The detail of that data I have not read in a very long time. As I said, it is probably about 16 years since that operation moved from my electorate down to Woodville.

Except for the opening down there, I do not think I have been back to that facility, so I do not know what contemporary counselling material is available. As with most other things, I would expect that there is quite a bit of online availability, and there are of course professional counsellors who will be in the referral list. We will try to get that information, but I think the appetite for having a provision for counselling is clear, and what services go with that we will see.

The only thing I can add is that, clearly if it is mandated for all appointments in relation to any consideration of termination as an option to deal with a pregnancy, it would increase a significant amount because we are talking about perhaps half a dozen who might be in that late time period, but there may be 4,000 if we deal with the whole state and the whole period of any termination, including a medical option. I expect we would then need to make provision for that in all GPs around the state, for example, who might provide some of that initial advice.

The reason I have adopted the New South Wales model in the proposal is that at least we know that that has been tested, a bit like the one before, the matter we have already dealt with, that that has at least been in operation. So if it is the will of the house that this be made available as a service for all applicants, as I said, it will increase the workload of counselling services that need to be available and/or pamphlet material. I do not know how much that might be expanded if the member for Adelaide's proposal is accepted.

I think it is pretty clear. Everyone wants that to be available and, if it is to be for everyone, whilst I do not have advice from the particular service providers that that is something immediate and different from what applies in New South Wales, I could not endorse that today. I will leave that to the house. If the amendment that I am proposing is amended by that of the member for Playford, then of course we will look to see how we might explore that.

I am being advised by the professor of some information. I hope this helps. Usually everything she tells me helps, so I will do the best I can. I am advised that counselling is available in the public system. Counselling and consent are different matters, obviously. Consent involves an expert clinician in discussing options available to individuals and coming to a decision in this process. Counselling, of course, is broader and considers wellbeing more broadly, including how it relates to abortion. I hope that assists.

Mr BROWN: Some members have raised with me questions about the other amendment that I have filed. I do not want to speak on that amendment, but I want to flag to the committee that should my amendment to the Attorney's current amendment be successful, I will not be proceeding with my other amendment that comes on later on.

I want to make a couple of remarks, if I could, about the statements by the member for Adelaide. I certainly would see that should my version of the Attorney's amendment be successful and her amendment be successful, there is no reason why they cannot work together and that there cannot be an opportunity to have potentially government mandated information given to people seeking terminations and that that could not also include references to where people can seek counselling.

I want to make it clear that my amendments to the Attorney's amendment does not talk about the compulsory provision or mandated provision of information, other than it must be information that shows someone where they can go to get counselling. That is all that is required. The nature of the communication is not mandated. What it has to say is not mandated. Where you have to point people is not mandated. It need only be information regarding where counselling can be sought.

Mr PICTON: Firstly, I acknowledge that we have counsellors in our health system who do an incredible job. When I visited the Pregnancy Advisory Centre, I met some of them and saw where they provide those counselling services. I am sure that they help those women in a range of different circumstances and with a range of different issues.

Obviously, we have two different proposals for how this counselling should be proceeded with in the house, but they both have very similar wording in terms of different criteria for whom it would be provided to, depending upon the week limit. Both have very similar wording in terms of the information that we have provided. The wording is:

…provide all necessary information to the person about access to counselling, including publicly-funded counselling.

One thing I do know about the health system is that it is very good at pamphlets. There is a plethora of pamphlets available in any healthcare system you might want to go to.

The Hon. S.C. Mullighan: Not on Facebook.

Mr PICTON: Not on Facebook, exactly. I guess I would like to ask the mover of the original amendment and also the mover of the secondary amendment about their interpretation of their wording here in regard to 'all necessary information to the person'. What is included in that? Is it just to provide a pamphlet to the person that may have a range of information in there about what they are about to embark upon, and a phone number for counselling may be part of that, or does the health practitioner have to talk through in detail the counselling provided, or would just providing that information be enough to satisfy this legal clause?

The Hon. V.A. CHAPMAN: The proposed amendment, with or without the member for Playford's addition to make it available to all, is designed to be consistent with the New South Wales provisions. That is the first thing.

Secondly, when we come to this issue of the information that is to be provided under the conscientious objection clauses—and again, it is a bit further down the track—we have proposed there, again, that there be a prescribed form, and we have already indicated that it should be like the New South Wales model. It relates to the question of access to information in relation to pregnancy options. It is the same thing that should be followed in relation to this, on the basis that we are now going to have reference to counselling, and should be done in the same manner.

For the benefit of members, in New South Wales they have a fact sheet in their prescribed form. I will read it to you, because it is very simple. It is titled NSW Health Pregnancy Options, and has a New South Wales government flower and logo on the corner. It states:

Finding out you are pregnant is different for everyone.

If you would like free, unbiased and confidential information on pregnancy options, including continuing a pregnancy, terminating a pregnancy and seeking pregnancy options counselling, you can speak with a health professional by calling:

NSW Pregnancy Options Helpline on—

and it sets out the number—

This phone line is available 24 hours a day, 7 days a week.

It then also describes:

For more information on pregnancy options, visit the NSW Health website—

and it gives a website reference. It also has a little QR code to go with it. It is covering the continuing pregnancy—which has, of course, been very much a subject in this debate, the termination of pregnancy—which are the rules around the bill we are discussing—and now counselling. It seems to me that if it is the intention that there be a process by which we are to both impose and monitor compliance, then I recommend we have the prescribed form and that this would cover that.

The member for Adelaide has raised a slightly different matter in that I think her motion—which I am happy to speak to—foreshadows any other particular considerations around what outcomes might follow from continuing a pregnancy, such as what support might be available to keep the baby and provide for the child even if financial arrangements are limited, or adoption, or what support might be available for relatives who might provide support. It is all those sorts of things.

Those are matters I am happy to explore in terms of what is already available on our health department website, but I suggest we have a prescribed form similar to what I am recommending in the conscientious objection obligations. I am further advised that counselling is generally offered to people seeking an abortion but not necessarily in all circumstances, and obviously we are seeking to impose that by virtue of this consideration. Information and consent is, however, necessary for everyone seeking abortion.

Just so that we understand that, there are two different issues: one is the counselling which, if I am reading it right, members are saying, 'We want to make sure that everyone has access to information that can tell and provide the supports for every different option you might have with the pregnancy,' and, secondly, the process in relation to a termination requires that information be provided and consent be obtained. There has to be an informed consent process. They are two different things, but at the moment we are just dealing with a counselling obligation, so my it is my proposal in relation to this amendment that it will follow similar to that.

The CHAIR: Member for Playford, you were part of that question as well. Would you like to respond?

Mr BROWN: I will attempt to answer the member for Kaurna's question. I thank the Attorney for her characteristically fulsome and informative response. My opinion is that the information the Attorney presented from New South Wales would satisfy my understanding of this particular provision and is also what I hope to achieve by my original amendment, which is simply to make sure people are given the information about where they could seek counselling, should they wish to.

The CHAIR: I remind the committee that we are dealing with the member for Playford's amendments at the moment.

Ms COOK: In respect to counselling, I have a strong view that people seeking abortion should have the respect they deserve, that they have the capability to make the decisions required in their circumstances. Counselling is available at the Pregnancy Advisory Clinic. I take the opportunity to thank all the counsellors who have worked there—and I have met some of them over the years—for the fantastic work they do, and also the counsellors outside that circumstance.

We know people have a variety of counsellors already they have contact with: that might be in church situations, it might be attached to other community services they are engaged with, and there are a number of great counselling services available, although very overworked, very underfunded—we know all the arguments. I guess it is a bit of a question again in two parts to the mover of this amendment, the member for Playford. No. 1, if your amendment gets up, will you vote for the bill in whole? And No. 2—

Members interjecting:

Ms COOK: Yes, it's a good question. I can ask questions—settle, relax!

The CHAIR: Bear in mind that the member for Playford can choose how he wants to answer that.

Ms COOK: Yes, correct. Does it really make that big a difference to him? Is this the kicker in the debate about counselling being involved?

The CHAIR: I am sorry to interrupt, member for Hurtle Vale, but ordinarily those sorts of conversations usually happen in the corridor.

Ms COOK: Anyway, he can choose not to answer it. Is the member for Playford aware of the counselling already provided through the Pregnancy Advisory Centre and the quality of what is offered?

Mr BROWN: I am at a bit of a loss to try to understand where the member for Hurtle Vale is coming from. I might start with the second part first. Yes, I am aware of the quality of the advice; that is why I am seeking to have everyone who tries to seek a termination to be provided with, hopefully, the phone number of the Pregnancy Advisory Centre so that if they wish they can seek counselling from them. I respect the counselling they provide so much that I would like everyone to have their phone number.

As for the first part, I will need to see what the bill looks like at the third reading before I decide how I vote at the third reading. I do not know how other members choose to vote on pieces of legislation, but that is how I do it. If it is unfortunately the case that there are any other members of this parliament who are listening whose vote depends on what I decide I will do, then please contact me and I will be happy to discuss it with you before the third reading.

The CHAIR: I think many of us here will be interested to see how the bill looks at the end of the third reading.

Ms STINSON: It seems to me that where we have arrived at with this amendment is quite a sensible place. The member for Playford put forward an initial amendment in relation to counselling, and I thank him for raising this important issue. I think it is something that we here should be considering for inclusion in this bill. However, I did have some concerns with that initial amendment, particularly that it did not mandate that publicly funded counselling services should be provided to a person who is seeking a termination or considering their options. I think that the Attorney's amendment is an improvement on that in that it does say that information, including that from publicly funded services, should be provided to a person.

I believe that the amendment that is before us right now from the member for Playford, which is an amendment to the Attorney's amendment, further satisfies the concerns I have or how I would like to see this matter addressed in that it simplifies the situation. Rather than having one process well before 22 weeks and six days and another process afterwards, what is essentially achieved is one single process that can be applied no matter what stage a woman is at in considering her options. I think that that simplicity is important.

Obviously, laws like this are quite complicated. I have great respect for the wealth of information that our medical professionals have to consider, and I think this would make things a lot easier for our medical professionals to understand their obligations and at what point their obligations kick in. I do not think it is actually mandated that the information needs to be written, but obviously we have heard that that information is most likely to be provided by way of some sort of leaflet with information and, indeed, a QR code. I think it is important that it is provided in writing.

It is an incredibly tough time for a woman considering her different options, and she may feel differently about things at different points. That may mean that initially she may not wish to access counselling services but that later on in her deliberations or after a termination she may wish to access counselling services and may not even recall whether or not those options were not raised with her verbally. Obviously, it is up to a woman whether she keeps the leaflet or what she does with it, and that is entirely her choice. I think that the provision of information written down provides something that a woman can then turn to later on if she finds that she need some support or just someone to speak to.

It also covers our medical professionals. There will not be a situation where someone says, 'Oh, well, I mentioned this; I talked about this.' There will be a piece of paper that is handed over, and a medical professional can have some confidence about what that information is and that everything they need or indeed want to convey to a woman is on that piece of paper. I think it provides assistance to both a woman looking at termination options as well as the medical professionals who are assisting her.

Further, I think that where we have arrived at with this amendment reflects the information that I have received in briefings, particularly the government-provided briefings, and the conversations that I have had with medical professionals who work in this field who have said to me that they seek to provide this information and do in fact provide this information to women, some verbally, some in writing in already existing pamphlets and website information. Really, what this does is formalise and codify a practice that our medical professionals are already doing. They are already providing this information to women, which is a good thing. All this does is codify the practice that is already going on.

To that end, I recognise that some have raised the issue that providing information may put additional pressure on a woman or makes a woman feel pressured, particularly if she has arrived at a decision about have a termination. That may be the case, but I think overwhelmingly it would not be the case, and I think overwhelmingly information is power. More information, clearly communicated, is a good thing for someone who is having to make an incredibly difficult decision.

As I said, obviously it is up to an individual whether they want to retain that information, read it or not read it, throw it in the bin, leave it at the Pregnancy Advisory Centre—they can do whatever they wish with that information. I think on balance this does more good than it does harm, and for that reason I indicate that I will be supporting this in its third incarnation through the amendments.

I think it delivers positives for both medical professionals and for women who are looking at their options. For that reason, I thank both the Attorney for her improvement on the original amendment and the member for Playford for his latest amendment as well.

The Hon. V.A. CHAPMAN: I have listened to the other contributions. Meanwhile, I have been trying to get advice relating to how this could be populated, that is, the amendment to the amendment. I think all of that can be accommodated on the basis of the qualifications; that is, we are not asking for us to come some agreed format as to what is going to be given to the applicant, but the referral to a counselling service.

As I have said, if there are other members who have a view as to whether there are any other aspects of counselling in relation to a pregnancy other than the three items that are actually prescribed here in the form, please let me know, but it is counselling for all options, continuation of a pregnancy and a termination. I do not know if there are any other options. There are lots of consequences and options depending on which one you choose.

For example, as I say, in the continuation of a pregnancy, I would imagine the sorts of things that would need to be looked at are that if somebody is going to retain the child themselves—which, of course, is very common—what benefits are available for support, what childcare arrangements might be accessible, and if there is going to be family involvement, what guardianship arrangements might there be for a relative? These are the sorts of things I expect they will want to get some idea about. Finally, there are aspects such as adoption if, for example, there is to be, again, a full-term pregnancy.

I have just named a few. I am certainly not about to try to craft all the material that would be given, but I think it is important if it ought to be populated. The only information I think I can add for the benefit of the committee is that apparently 30 per cent of women who get advice at the Pregnancy Advisory Centre—as I say I have not visited it contemporarily, but I know a number of members have since we started this debate and I think that is a sensible approach—actually do not proceed with a termination.

That may be because they have gone there to get a breadth of advice and they have decided that termination is not for them. I do not know the answer to that. I just make the point that sometimes, probably like you all, I get ringing endorsements of the Pregnancy Advisory Centre and great confidence in them, etc. and sometimes we have heard some suggestion that with some of the services that are available—it may or may not be that one, but it does a huge body of work in South Australia—people have less confidence in them giving some diversity of options for the clients or patients who visit. I am not going to weigh into that debate.

Obviously, we have a whole list of people and hospitals that are prescribed, even under our current law, but the reservoir of information in New South Wales is in the health department and I am proposing that that be the independent, public, free service available of the list of counselling services that are available, just as I am going to be proposing in relation to the conscientious objection obligations of referral.

Mr PICTON: I just have a couple of further questions, firstly for the Attorney and then for the member for Playford. Not that I would ever misunderstand the Attorney, but can I clarify in terms of what you mean about this prescribed form? Is it the fact that elsewhere in the bill there is going to be a prescribed form that is going to be given to the pregnant person, and that we will simply incorporate the counselling into that form? Is that what you are saying?

The Hon. V.A. CHAPMAN: What I am saying is that, when we get to the conscientious objection, you might recall that there is an obligation—if I try to quickly summarise it—for someone who wishes to conscientiously object firstly to convey that to their patient and then to either provide a referral to someone who they know is competent to undertake that service if they are referred or refer it, as per a prescribed form, to a certain facility in the Department for Health.

Again, this is an area that we might need to flesh out in that aspect because certainly I have had an indication from members' contributions that they are worried on behalf of constituent doctors who are in some way forced to have to find somebody who can do it and to refer their patient on to.

If they have a look at the clause, it actually gives them an option. They can do that if they wish and they are happy to make that available or that is no issue for them, but if they are genuinely not wanting to even participate in a referral to find somebody, they can refer them to the website of the Department for Health. That is in a prescribed form in New South Wales and I am proposing in our bill that it be in a prescribed form. It just happens that in the New South Wales one it includes 'and seeking pregnancy options counselling'. It may cover it completely, but that is the idea.

Mr PICTON: Thank you for that clarification. So that would be a form that is provided to people where there is a medical practitioner or a health practitioner with a conscientious objection. That form is not necessarily being given to everybody and so, therefore, I guess my original question still stands. I guess your suggestion is that that form be the one that is used, but that legally would not necessarily have to be the form of the piece of information that could be provided to meet this requirement under this proposal in the statute.

The Hon. V.A. CHAPMAN: I think that if we are going to mandate something, frankly it should be. I think we need to be clear, as New South Wales has worked through this, that if we are going to say to doctors or anyone who is that sort of frontline advisory service provider, 'You need to be able to give them a document that clearly sets out their options,' that it is not a bad idea to be able to say that there be a record and that they have been provided with a form and it is in a standard form because if it was simply a situation where doctors were mandated to do this there may be a question of proof down the track. 'Actually my doctor did not really tell me about that option. He just said that you need to go down there if you want to have an abortion.' I think it is probably helpful.

Certainly, New South Wales has gone down that line and because we have the foreshadowed inclusion of a conscientious objection clause in this bill, with or without some amendment, so far nobody has come to me to say, 'If we are going to have a process, it should be different to what I have recommended.' It is never too late to raise that, but I make the point that New South Wales has already done this. It just seems to me that, wherever you mandate something, you do need to make it clear as to what the obligation is, and if there is a prescribed form to assist in that regard in any compliance then I think that would be helpful.

The CHAIR: This is your final question, member for Kaurna, given that you had one clarification.

Mr PICTON: I take it that in the regulations there is going to be a prescribed form. I am wondering if the Attorney—maybe while the Attorney is busy I will ask a question of the member for Playford.

The CHAIR: It is coming through the Chair anyway, member for Kaurna.

Mr PICTON: That is right, but it does help if she is listening.

The Hon. V.A. Chapman: I'm always listening to you.

Mr PICTON: Of course you are. I will ask the question first. You might need to get some advice from your learned public health adviser. You mentioned before that the vast majority of people are provided information in terms of the availability of counselling under the existing regime. What are the sort of situations in which somebody might not be provided with that at the moment?

The second question to the member for Playford about his amendment is: if there was a situation where a pregnant person comes to a doctor and is very clear about the fact that they do not want counselling or information about counselling, does that mean that this information still has to be provided to that person, and how would that work?

Mr BROWN: In a case where somebody says, 'I do not want you to provide me with any information about counselling whatsoever,' under the mandated provisions, they could say, 'Well, don't look at this pamphlet I am about to give you.' It would be very hard under those circumstances. One thing we should keep in mind is that we mandate a whole bunch of things about the way in which things are to be performed.

It is very difficult to see circumstances where someone has said, 'Well, what if this particular aspect was completely different?' I cannot imagine that, given we are essentially talking about the provision of contact information for a counselling service, that would necessarily be a cause of distress for a particular person.

I will repeat this again for the benefit of everybody: they do not need to undertake counselling; they simply need to be provided with a contact number, as the Attorney outlined for New South Wales, where they could seek counselling should they wish to. They do not need to do anything with that information, they can immediately throw it in the bin if that is what they want to do, but the doctor or registered health practitioner must provide them with that information.

We are told under the guidelines that are currently issued by the royal colleges that that information will be provided as part of the consultation process, so it is simply making sure that we mandate what we are advised by the professions already takes place.

The Hon. V.A. CHAPMAN: In answer to the first question, firstly, the circumstance in which counselling is provided or would not be offered at present would be in a circumstance where the patient says, 'I don't care what you say, I don't want counselling. Don't give me any counselling. Don't refer me to anybody,' and that would occur. Second, and I think the obvious thing, is if the patient presents to seek a service and indicates that they have already had sessions of counselling and they have actually been to that service.

The question is how the medical practitioner should do it if we mandate it. It would be my view that, if we are going to mandate the doctor to do it, even in those circumstances—particularly as it is the doctor and/or practitioner who is going to be in the firing line, especially in insurance claims, if they do not actually hand it over—there are two examples.

One is, 'Doctor, you don't have to worry about that. I have actually already been to counselling, I have given it up as a dead loss, I am now going to do this. I have made my own decision.' The second is, 'I don't want it.' In both instances, I think it would be prudent for us to proceed with the law, with or without the member's amendment, which seems to be providing for some simplicity, and I am more inclined that that be the case here.

In my view, it would be appropriate for the practitioner to say, 'Look, I appreciate that but, nevertheless, I am obliged to provide you with a standard form that sets out the availability.' What they do with it is of course their matter. I think this is where the member for Playford in his presentation is saying, 'Look, we are not opposing some unrealistic expectation on practitioners; we are really just asking for a referral obligation.' I am just saying that if we put it in a prescribed form, we say to doctors, 'Whoever fronts up for this ought to have this form.'

Secondly, though, a doctor professionally cannot proceed with the termination process, or indeed lots of processes in service provision, without ensuring that they have informed consent of the patient. Again, I suspect the guidelines will take care of themselves in relation to those who might go on to elect a termination, because they have to go through quite a process to be able to undertake that procedure. Whilst there are different processes there, there is a hurdle that would cover those if they do elect to go along with that process.

In any event, back to the format of what we are proposing, make sure that anybody who is presenting is given the pregnancy option in a standard form, including counselling. It will be a matter for the patient to undertake that, it will be a clear identifier for the purposes of proving the compliance with the mandated expectation and it will be in simple form to refer the patient to seek such services as they elect to. Have I covered that sufficiently, member for Kaurna?

Mr PICTON: Yes.

Amendments carried.

The CHAIR: The amendments to the amendment are agreed to. We now need to consider the amendment as amended.

The Hon. V.A. Chapman interjecting:

The CHAIR: That's exactly right. Any further discussion on that? Member for Badcoe, it is an opportunity now.

Ms STINSON: I have one small question of the Attorney, just a matter of how in practice things would work out. Often, a woman would go to her GP and after that see someone at another service or maybe even a few different specialists. What would be the process in terms of determining which medical practitioner at which point provides it? I ask that because of course we would not want people feeling unnecessarily pressured by getting the same information again and again, but at the same time we would not want a medical practitioner assuming someone else had provided the information. I wonder if the Attorney might shed some light on how these things are worked out in the health system and how that would be determined.

The Hon. V.A. CHAPMAN: The obligation here is at the point of performing a termination. It seems to me it is a little way along the line and it raises the question of having a mandate. Nevertheless, we are doing it because we want to make sure before they sign up to actually proceed with the termination because it says, 'before performing a termination' on a person. So it could be way back, early. I think the expectation, though, is that the mandate will be at this point, but any registered health practitioner must do the assessment, etc., and in this case with the amendment to the amendment in relation to all people seeking that service. They may have been to a number of other professionals along the way. I have had confirmation that it is before performing the termination, that is, the person who actually performs the termination, not the referrer.

Mr SZAKACS: In the contribution from the member for Playford speaking to his amendments to your amendment, Attorney, he talked about being so profoundly supportive of the work of the PAC that he would seek to provide all people with the details of the counselling services available at PAC, something I support as well in theory. What consideration will you give, and then in the implementation of this bill, should it become law, into the additional funding to the essential services the PAC provides, which are now arguably underfunded based upon current need?

The Hon. V.A. CHAPMAN: I have heard about an air conditioner breakdown and the need for $100,000, and I have indicated I will follow that through with the health department. By no means is the service at Woodville the only facility. You only have to look at, I think, schedule 3 of the Criminal Law Consolidation Act: there are facilities all around the state, including in the private and public sector.

What is being mandated here is a free service—so they have to be referred to a free service. As I previously indicated, all the public sector provides that apparently for free. I do not know what the situation is at other private facilities. I think the answer to that really, in short, is going to be to make some assessment about what is available now. But there is a multitude of hospitals currently that provide service, and we would need to consider what else is there, I expect.

I know at the moment that in the development of the health model provision for terminations, which has been developed with a huge amount of work done by the Department for Health, they are anticipating, by virtue of the conscientious objection proposals, that they need to have a list of people available. Presumably, when they go to the QR code, on the prescribed form that would be developed under that they will be able to make an inquiry of the health department identifying where the patient might be geographically in the state, as to where they might go and what options for services they have if they live in Strathalbyn, Ceduna or West Beach to be able to identify where they might be seeking support in their proximity or outside of the district in which they live.

Bear in mind that the sensitivity of this type of information is such that patients do not elect to go to their local doctor. They are already preparing for the obligation to provide referral to services and practitioners as a result of the conscientious objection clause. We would have to check with the health department. The professor is shaking her head; presumably they know what services are already available, and they will identify if there might be a greater need for that.

The CHAIR: Attorney, the question was about funding, and in my view that question is more pertinent to the estimates process than this process. The member for Cheltenham is on his feet again.

Mr SZAKACS: Thank you for the fulsome answer, Attorney, even though the Chair rightly pushes it towards estimates. Would the Attorney consider to what extent she can assist this committee by bringing back some further information, either during this debate or in future consideration of or consultation on regulations, around where exactly those free services can be mapped out into the broader system and, as you rightly put, further to the member for Playford's personal advocacy of the PAC, the need for this to be a system-wide approach? I think anything that we can receive in that respect may give us some comfort about need being mapped with accessibility.

The Hon. V.A. CHAPMAN: I understand that. We already have an amended motion that is before us, which could be quite an extensive demand for these services. It may not be. I do not know the answer to that. I am assuming the health department is already a reservoir of advisory services on all sorts of health needs across the state, but we just need to make sure that that is checked and where it is.

To some degree it is a little bit like the schedule in the Criminal Law Consolidation Act as to prescribed hospitals. If this bill gets through, you have already heard, they need to go through, refresh the list, check who is still providing the service and then identify who is going to be prescribed for the purposes of this new piece of legislation in moving it into the regulations that sit under this standalone piece of law.

Similarly, if this passes, then the department usually goes back and looks at these things. The preparation of regulations, of course, is also looked at. That is the normal process. What influence I have in relation to what other amenity might be—I do not know what is there now, so I cannot give you any prescription on that. But if the parliament passes a law and requires a service and it must be free, then of course that exercise needs to be undertaken by the health department.

Incidentally, I have had no-one else suggest to me that it be any other body than the health department to receive the referrals—and I am not advocating that—for seeking advice on that information. If I can just give some example, I would imagine that the Women's and Children's Hospital, which we know from the reports we get here each year from the abortion committee, is a significant provider of this service. What amenity they have in relation to counselling I do not know. But, again, these are the things that would be fleshed out and identified and appropriately resourced, if they are not already, to facilitate compliance with the new act.

The Hon. V.A. Chapman's new clause as amended inserted.

New clause 6A.

The Hon. S.C. MULLIGHAN: I move:

Amendment No 1 [Mullighan–1]—

Page 4, after line 37—After clause 6 insert:

6A—Mandatory considerations for medical practitioners performing terminations after 22 weeks and 6 days

In assessing matters for the purposes of section 6(1), a medical practitioner must, when determining whether to perform a termination, have regard to the following:

(a) whether it is essential to perform a termination of an affected foetus in a twin pregnancy at a gestation that does not risk severe prematurity and its attendant consequences for the surviving foetus;

(b) whether there are serious foetal abnormalities that were not identifiable, diagnosed or fully evaluated before the pregnancy reached 22 weeks and 6 days, including but not limited to abnormalities involving the brain, heart, renal and skeletal systems, or whether the foetus has been exposed to infective agents which may damage or limit the gestation and development of the foetus;

(c) whether the patient has had difficulty accessing timely and necessary specialist services before the pregnancy reached 22 weeks and 6 days, including but not limited to patients experiencing significant socio-economic disadvantage, cultural or language barriers and those who reside in remote locations;

(d) whether a patient has been denied agency over the decision to continue a pregnancy or not, including (but not limited to) the abuse of minors and vulnerable adults to sexual and physical violence including rape, incest and sexual slavery;

(e) whether the abuse outlined in paragraph (d) includes circumstances in which such abuse is not apparent, or the pregnancy is not diagnosed until an advanced gestational age;

(f) whether medical or psychiatric conditions may become apparent or deteriorate during the pregnancy to the point where they are a threat to the patient's life;

(g) whether the patient has a deteriorating maternal medical condition, or late diagnosis of a disease requiring treatment incompatible with an ongoing pregnancy (such as malignancies).

I will just speak to provide members some detail about the amendment and why I am moving it. I felt, in the latter stages of last night when we were getting towards the end of what turned into a very long debate on clause 6, that it seemed from my perspective that it was emerging that there were two different trains of thought and two different camps of MPs, one group of which were quite comfortable with what the Attorney had proposed with her amendment to the bill, which included I guess a variation of what had been proposed by the Minister for Environment and Water, and within that, that section which spoke specifically about affecting the physical health and the mental health of women.

Then, in the other camp, there was that represented by the Minister for Environment and Water, who sought to remove that and have quite a specific two-step test. As I intimated in my second reading contribution and as I tried to articulate last night, I did not particularly feel comfortable with either approach. There were a lot of questions asked of the Attorney by several different MPs—me included—about how a medical practitioner would try to make a determination about providing a termination based on subparagraph (ii), which spoke about the physical and mental health of a woman.

I was quite grateful for the advice from the Attorney that there are professional standards, there are guidelines and documents in existence that guide not only the thinking but the practice of medical practitioners in making such a determination. When I made my comments last night, I prefaced them by saying this clause 6 seems to me to be the crux of the bill. Perhaps members can think of this bill as, generally speaking, being in three separate but of course connected parts: one is the decriminalisation, which I think we are all fulsomely in favour of, and the second part of it is canvassed largely by clause 5, and that is, for want of a better term, the early-stage terminations.

I have not really seen any appetite to be changing those provisions beyond what was provided in the Attorney's original bill; that is to say, I think most people are largely comfortable with what is in the bill about early terminations. But where those two parties emerge, where those two groups of MPs emerge is when it comes to late-term abortions. Basically, we have a provision that was contained in the Attorney's amendment to clause 6, which was quite general, surrounding physical and, in particular, mental health of the pregnant person, and then what we saw with the Minister for Environment and Water.

Without wanting to relive let alone relitigate last night, at one point I had suggested, both privately and to the chamber, that perhaps there might be a third way through this: perhaps there might be some further amendment, a clause that could be drafted that provides some specifics to put at greater ease the sorts of concerns that people like the Minister for Environment and Water have but would not offend what the Attorney's amendment was based on.

I asked a couple of questions of the Attorney about what the guidance is and what the document is. I was grateful for the advice, because amongst all the information that had been provided to MPs I think that was the actual document that I had overlooked. I had looked at the AMA material quite carefully but not that of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists, so I was grateful for the advice. I was reading it not for the first time last night, but I was listening quite carefully to some of the questions that were being put to the Minister for Environment and Water in particular, about the sorts of scenarios that a deliberately crafted catch-all of physical health and mental health would provide for, which the Minister for Environment and Water's suggestion to the house would not have provided for.

I am completely sympathetic to the points that the Attorney and the members for Port Adelaide, Reynell and Hurtle Vale made, and I think the member for Cheltenham gave some examples. It seemed to me that while they might have been caught by the catch-all—and I am sorry to use that expression—of the way that the Attorney had suggested it, they most certainly were not provided for by the Minister for Environment and Water.

I felt caught, to be honest. I privately suggested to the member for Port Adelaide that I might resort to one of my onerous pop culture references. I did not, you will be pleased to have experienced, but I will do so now. I felt a little like—

Dr Close: I've been waiting for hours.

The Hon. S.C. MULLIGHAN: Yes, that is right: the anticipation has been killing some of my colleagues. I felt a little like General Zod in the first Superman comics, stuck in a phantom zone of not being able to find myself comfortable in either camp last night. That was why there was that last-ditch effort, really, to try to broker an arrangement that hopefully members generally would find a workable and satisfactory compromise between the two.

I must say that, as I was travelling home last night, it troubled me quite a bit. I read and reread the provisions in the late-abortion guidance that the college has published. I tried to put against those guidance notes the scenarios that were raised last night. It seemed to me that those guidance notes would cover off not only the scenarios that were put to us last night: the impregnation of a 13 year old; the rape or statutory rape of a child or an adult; circumstances involving incest; circumstances involving somebody who did not know they were pregnant until quite a fair way through gestation, presumably beyond 22 weeks and six days; perhaps somebody who was unable to access medical examination, let alone the treatment or testing that usually goes along with pregnancy; and so on. I know I have not represented all the examples that were given last night, but I think you are getting a flavour.

First thing this morning, much to the chagrin of parliamentary counsel, I asked whether they would be able to try to turn those provisions, the guidance notes from the royal college, into an amendment that I could move as an additional clause to operate in conjunction with clause 6 that we agreed to last night. This is that clause, clause 6A—never mind the procedural and drafting unpleasantness that may follow if this is drafted, the renumbering and so on—which adds considerations into how a medical practitioner already considers a late-term termination.

I am grateful to parliamentary counsel for doing that not only in very short order but also in an almost verbatim replication of those parts of the late abortion guidance notes. It is not verbatim perfectly, of course, because for the purposes of drafting an amendment to a bill some minor wording changes had to be made, but the substance remains 100 per cent intact from those guidance notes. It is my view that these guidance notes not only capture all those scenarios but are sufficiently broad to capture scenarios that perhaps none of us have even contemplated yet and would be concerned about capturing.

They are not a halfway house between what the Minister for Environment and Water suggested last night and what the Attorney suggested at all. In my view, they quite closely align with what the Attorney was suggesting. They not only provide some further specificity to physical and mental health but go far beyond that as well. Perhaps my colleagues will correct me shortly in discussing this, but I have tried to contemplate a circumstance that would not be provided for by these guidance notes, and I have not been able to readily do so. This is my very genuine attempt to try to leave us with something that far more of us can feel comfortable with in this bill.

It does not offend the clause that we passed last night at all. It does not offend, I think, what the Attorney tells us the drafting and wording of her amendments to the bill's clause 6 provide for. All it does is provide the specifics of the considerations that a medical practitioner might go through. I am aware that some in this place, including those spectating the proceedings, might not have it in front of them, so I will read it quickly. Hopefully, we will all get a pretty thorough impression, as I have, that this should cover pretty much any circumstance that we might be concerned about with regard to a late-term abortion, again using the words of the college itself. The amendment provides:

In assessing matters for the purposes of section 6(1), a medical practitioner must, when determining whether to perform a termination, have regard to the following:

(a) whether it is essential to perform a termination of an affected foetus in a twin pregnancy at a gestation that does not risk severe prematurity and its attendant consequences for the surviving foetus;

(b) whether there are serious foetal abnormalities that were not identifiable, diagnosed or fully evaluated before the pregnancy reached 22 weeks and 6 days, including but not limited to abnormalities involving the brain, heart, renal and skeletal systems, or whether the foetus has been exposed to infective agents which may damage or limit the gestation and development of the foetus;

(c) whether the patient has had difficulty accessing timely and necessary specialist services before the pregnancy reached 22 weeks and 6 days, including but not limited to patients experiencing significant socio-economic disadvantage, cultural or language barriers and those who reside in remote locations;

(d) whether a patient has been denied agency over the decision to continue a pregnancy or not, including (but not limited to) the abuse of minors and vulnerable adults to sexual and physical violence including rape, incest and sexual slavery;

(e) whether the abuse outlined in paragraph (d) includes circumstances in which such abuse is not apparent, or the pregnancy is not diagnosed until an advanced gestational age;

(f) whether medical or psychiatric conditions may become apparent or deteriorate during the pregnancy to the point where they are a threat to the patient's life;

(g) whether the patient has a deteriorating maternal medical condition, or late diagnosis of a disease requiring treatment incompatible with an ongoing pregnancy (such as malignancies).

That is a very broad set of considerations. In effect, any one of those considerations allows for what we have been talking about for many hours, that is, the provision of a late-term abortion. It is not all those things that are required but any of those things, and even, as you would have heard as I read them out, any of those specific things but not limited to those specific things. This is a very broad drawing, and I would encourage members to consider the amendment with the spirit in which I bring it to the house. Hopefully I look forward to their support.

Dr CLOSE: Yes, I think where the member ended is a good place to start. I appreciate that we have spent very many hours in this place, some of them quite late at night, dealing with one of the most morally complex issues that has confronted this house since I have been in parliament, which is just gone nine years. It is so important that in having these discussions we maintain an appreciation of the fact that everybody here is trying to do the best thing by their understanding of the complex balance of competing morals, competing values.

I say that because I appreciate that what the member is trying to do is, as he said at the beginning, find a third way. The difficulty I have with that is that I do not think there is anything wrong with where we landed last night, so I am not seeking a halfway house between that and anything else, because I was perfectly comfortable to support the position; in fact, I was comfortable with the original bill.

I have been challenging myself, not only because everybody in this chamber who is seeking an alternative is coming at it with good intentions but also because I have had a long-term knowledge of the member for Lee, and an affection for the member for Lee, since he was a young university student and I was working at the university myself. I come to this seeking to understand exactly why this is before us, having had the debate last night and having, I thought, settled where we were landing. I think that two desires are being manifest here. One is to make sure that nothing bad happens, nothing unexpected, nothing unintended, as a result of a piece of legislation that we are agreeing to.

There is a fear that if we are not careful then a doctor might do something—two doctors in this case—that we regard, individually or collectively, as not what we had wanted. I think we have to allow ourselves to have greater faith in the medical profession than that, not only in the individual doctors but, in fact, in the profession, which has guidelines, ethics and accountabilities, a whole matrix that dates back hundreds of years but is a way of managing a profession that deals with life and death and pain all the time—emotional pain and physical pain.

I do not think it is possible for us in this parliament, or any parliament, to so codify a decision-making process that we can replace that complex ecosystem that sits around a highly professional, highly trained and highly experienced person, and I do not think we should continue to try to. The second explanation in my mind about why we are still having this debate is a sense that it is possible to create a sort of computer system, a matrix, where you feed in the details of a patient, a woman, and it spits out the answer, and that the woman is only a series of characteristics.

I do not mean to be pejorative in the sense that this is just about women. I am not in any way trying to signal that because it is about women that is how you are treating us; please forgive me if that was an implication. The sense is that the patient is a series of characteristics that can be ticked off and then fed into this computer and out the other end comes this answer of yes or no, you can continue to have the termination that you have requested. I do not think that is possible. I do not think it is desirable, but I also do not think that it is possible.

So we come to this proposal, which is to take a series of guidelines that exist not only independent of this parliament but also now in this bill before us as was agreed last night, that 'in considering whether a termination is medically appropriate, a medical practitioner must consider the professional standards and guidelines that apply to the medical practitioner in relation to the performance of the termination.

They are there. They are sitting there already. But what this amendment has done is say, 'We are able to take one of those guidelines and we are able to turn it into legislation.' Guidelines and legislation are not the same thing. One of the reasons they are not the same thing is that legislation has the weight of saying, 'This is a mandatory and presumably implicitly exhaustive list of things you can consider.' Whereas a doctor has all of these, their ethics and their profession. How do I know this? On the front of these guidelines, which have been turned into this amendment, it states:

Disclaimer: This information is intended to provide general advice to practitioners. This information should not be relied on as a substitute for proper assessment with respect to the particular circumstances of each case and the needs of any patient. This document reflects emerging clinical and scientific advances as of the date issued and is subject to change. The document has been prepared having regard to general circumstances.

That is what guidelines do. They are valid and weighty. This is not to diminish the weight of these in the consideration of a clinician but it is to say that at a given point in time they are not appropriate as a mandatory and exhaustive list to sit in legislation for as long as this piece of legislation exists in this form.

I further point out that the review date for this particular set, which has been used I am sure extremely diligently by parliamentary counsel, is due in November of next year. So there are two problems with taking guidelines and putting them into legislation. One is that they go from being guidelines that sit alongside general practice, clinical practice, experience and the complexity of the circumstances that take a general series of guidelines and address them at a human being, with all of the messy complexity that we humans bring.

The second is that they are not static in the way that legislation is static. I know we can change legislation and we could come every year to debate abortion if that is the wish of this chamber, but that is an onerous expectation to choose to put into a piece of legislation. The way to do it is what we agreed on last night, which is to say that 'in considering whether a termination is medically appropriate, a medical practitioner must consider the professional standards and guidelines that apply.'

That is what applies at the moment but that may be different. There may be some slight differences as a result of medical developments, scientific developments, understandings of what the possibilities are, understanding the interaction between mental health, physical health, drug dependence and pregnancy. We cannot envisage that.

Before I conclude, I would like to read some comments because I am far from an expert on this. As I often say, 'Yes, I am occasionally called "doctor" because I have a PhD but don't show me your skin lesions. I am not a useful doctor.'

The Hon. A. Koutsantonis interjecting:

Dr CLOSE: Definitely not rashes. But I do like to listen where possible to the experts. We have one sitting here, which is very useful, and I am sure that we will be able to ask her some questions, but not about our rashes. What I would like to do is read the comments that were made to me for distribution by both the AMA and the Royal College of Obstetricians and Gynaecologists when I sent them this amendment and asked them for their advice. I quote the AMA:

We, as doctors, trying to assist and support women in already complex and distressing situations predicted and feared what would happen in the parliamentary process in the sequential addition of more and more criteria that would have to be applied and checked off in situations which are already, as I said, often complex and distressing beyond belief.

As such, they are unworkable and cannot be supported by the AMA because they would lead to a situation where they would make the care of already distressed women even worse than it is now, so despite decriminalising abortion, women would actually be much worse off and their care impossibly complex. The amendments put forward last night by the AG are workable and reference previous legislation so there is comfort in this.

Legislation can never cover off every potential ethical situation. They are too complex in the real world and we ask MPs not to make them as if they are in each consulting room, looking over the shoulder of each distressed woman.

The AMA understands the anxiety of the MPs in this debate, but this must not be transferred to be materially much greater distress imposed on every woman facing what are terrible decisions, which should be private and be between themselves and the treating team and not a shopping list of unworkable criteria essentially to make it impossible for them.

RANZCOG totally support the AMA position:

It is simply not possible to pre-specify and legislate for every possible circumstance. The additional clauses will only further impede the ability of women and their treating team to access the best care and advice. Professional standards, policy and guidelines, credentialing and multidisciplinary team review already provide protection without additional criteria.

I have enormous respect for the member for Lee not only as a member of parliament and person but also in what he is trying to do, but ultimately I believe it is misguided. We have reached a decision that we are going to allow abortions post the age of viability. We have reached a decision about the criteria that apply, and we have acknowledged and recognised the existence of guidelines. We now need to move on and complete this piece of legislation and feel that we have made some progress for women and for medical practitioners, all of whom are depending on us to do this to the best of our abilities.

The CHAIR: Just before I call the member for Lee, I am going to let the committee know that the member for Colton may move an amendment that seeks to change just one word. Did you want to do that now, member for Colton?

Mr COWDREY: I am happy to do so. I move to amend the amendment as follows:

Delete the word 'twin' and insert the word 'multiple' in paragraph (a).

It is not a reflection on the member for Lee by any stretch of the imagination, nor a reflection on his contemplations, but I simply just want to delete the word 'twin' and instead insert 'multiple' into subclause (a).

The CHAIR: I will call the member for Lee and then I am inclined to vote on that amendment quite quickly. Member for Lee, you speak now.

The Hon. S.C. MULLIGHAN: I am grateful for the member for Colton's amendment, and it is entirely acceptable to me. I had exactly the same thought when I read it. The reason I did not change it is that I did not want to be accused of saying that I was replicating the guidelines without actually replicating the guidelines. Thank you to the member for Colton for fixing that anomaly. I am happy with that. I am grateful for the contribution of the member for Port Adelaide, flattered as I am with the esteem in which she holds me. I can assure her it is mutual.

The CHAIR: I have just realised you are neighbours as well. Your electorates are neighbouring.

The Hon. S.C. MULLIGHAN: Every four years, we are enabled to swap some constituents by virtue of the boundaries commission. I do put a great deal of weight on what the member for Port Adelaide says, particularly when it comes to legislation and particularly legislation like this.

I was cognisant that I might get some feedback from some members along the lines of what the member for Port Adelaide has said. I know she is not seeking a halfway house, and she is happy with the bill as we have it to date and the clause 6 that we had last night without any additional requirements, notwithstanding the fact that we have just put on an unrelated additional requirement in terms of the provision of counselling materials. This is, of course, much more determinative than that on the operation of clause 6. I get that.

I do appreciate that there are some members here who were happy with an unamended bill and only really willing to countenance further amendments if they do not offend basically the unamended bill or the bill with the amendments we dealt with last night. I appreciate that.

Let me make it clear: I am not seeking a halfway house between the Attorney-General and the Minister for Environment and Water either. I am seeking to get a better understanding and articulation in the bill, in the legislation that is to be passed, of what the Attorney was telling us subparagraph (ii) meant. We were repeatedly assured that there is a provision in clause 6 for professional standards, and then we were told these are the professional standards which will apply. That was the repeated advice that we had from the Attorney.

With the greatest respect to the member for Port Adelaide, it seems to me that it is difficult to have this argument two ways. We either accept the advice that we have received to date from the Attorney and her advisers that the professional standards that will apply in the decision-making required in clause 6 will be these guidelines or we do not. For the member for Port Adelaide to draw attention to the disclaimers on the front of those guidelines, saying that these guidelines are not to be relied on, that somewhat undermines what we have been told for several hours in the course of the debate—that these guidelines will inform the decision-making.

I am struggling to find how both things can be maintained at the same time. I do not think what this amendment does is seek to place a decision through a matrix or some sort of computerised or automated contemplation of the issues and spit out an answer. That is not what we are doing at all. We are not removing judgement from the doctors here. All we are doing is asking that they consider a number of factors or requiring that they consider a number of factors before they come to a judgement. We are not saying what the judgement is. We are just outlining what the factors are that must form part of the consideration prior to arriving at a judgement.

These are not so specific that they are prescriptive, without any room for consideration of other matters, or so prescriptive that they bind a certain decision to come out of it, either for a termination or against it. Quite specifically, and these words I will admit are not in the guidelines, I have inserted words in some of these subclauses within the amendment, which say 'including but not limited to'. It is not an exhaustive list. There are further considerations that can be made by the medical practitioner in their consideration. It is not an exhaustive list. It is not so prescriptive that other things cannot be considered. Let me make that point as well.

I also say that I absolutely appreciate the advice of the doctors. I do. Without them, we would not have a bill and we would not be able to debate such a significant change to the law. They have been central and instrumental in shaping, firstly, how the SALRI has conducted its work and its advice and, secondly, how the bill has been formed. I am grateful that the AMA and the royal college have been able to consider something at such short notice and provide their advice to the member for Port Adelaide.

I make these two points: we need to bear in mind that one of the first things the AMA told the Law Reform Institute was that they had gone through a process of consulting with their members about this topic of law reform and that they received a very broad range of opinions, many in conflict with one another, and the information and the advice that they provided to the Law Reform Institute was reflective of the AMA council and did not purport to represent the entirety of the views of the profession, of course. We would expect nothing less of the AMA than to be that up-front about it.

I have been approached by members of the royal college, currently practising members, staunchly in favour of the original bill the Attorney presented to the house, and I have also been approached and lobbied by members of the royal college who are opposed to the bill. However, it is our responsibility to strike the balance, to arrive at a final version of a bill that, as best we can, we all think we can find agreement on.

We will disagree, and have disagreed on things to date, but it is our responsibility as members of parliament to strike a balance as we see best, reflecting not only our views but the views of the community, as a whole, that we represent—including doctors, of course, but not limited to doctors. I have said a number of times that the AMA themselves made it clear that this is not just a medical issue; it is a social issue, an ethical issue, and a legal issue.

Following on from the 22 in the other place, we are the 47 people who have to strike that balance. We have the medical advice, as broad ranging and as conflicting as it can be amongst different medical practitioners, but we still have work to do. We do not just blindly take it, because we have other considerations we need to fold into it.

I am not seeking to undermine clause 6. I am not seeking to revisit it, of course—I know that is procedurally impossible—and I am not seeking to undermine it. I am not seeking to insert a further amendment that either overtly or subtly changes it. I am just trying to articulate it, because that is the concern raised by members last night. There was repeated question after question about what mental health means, what mental health covers, but the only responses we could get back were, 'Those sorts of matters are referred to in the professional standards such as this.'

I am not trying to roll marbles under the feet of the Attorney or of the other proponents of the bill, or of those who successfully argued for the construct of clause 6 that we got. I am not trying to do that. I do not agree, I did not agree—and only grudgingly voted for it because I was concerned about having only physical and mental health in subparagraph (ii)—with how the Minister for Environment and Water constructed his amendment, because I thought it was far too simple and prescriptive.

I did not think it captured all those issues which, quite rightly, the members for Port Adelaide, Reynell, Cheltenham, Hurtle Vale and so on raised. It left all those out and would have left us with a whole range of unacceptable situations where people who had been put through the wringer—if I can use such a euphemism—in the way their examples had shown, would have been left without access to a termination. I do not think that is acceptable. People should have access to it and, of course, should have the choice of doing it.

All I am doing is appealing to my fellow MPs that, if they share the concern that I had last night about wanting a better articulation of how clause 6 has been agreed to in favour of the Attorney, then this, by her own definition, is it. Yes, those guidelines may change from time to time and, yes, I agree they may be changed in the near future. That is why I am grateful to the member for King for her subsequent amendment requiring a review.

The member for King suggests four years, which may mean—assuming we pass this bill and the amendments get through the other place, etc.—that we have a review period from the April or so of the months leading up to the subsequent state election. Gee, that would be something to look forward to for both houses of parliament. I would be more comfortable with a tighter time frame, whether it be two years or three years, I am happy to be persuaded.

A review amendment is imminent about the operation of these laws, not reviewing the laws necessarily, but just reviewing their operation. I think that is great because that means that, while I am seeking to do something that perhaps others had contemplated, and insert some defined professional standards to codify them and put them into the bill, then not only will we have some better articulation and definition of how doctors will think about this but in the future we will also have the opportunity to review it if it is found at some point and in some cases that it has not been fit for purpose. I cannot see how that will be the case, but I really do think this is a good way forward, and I would encourage my colleagues on both sides to give it some fair consideration and support it.

The CHAIR: Before I give any other members the call, I will deal with the amendment from the member for Colton, that is, to delete the word 'twin' and insert the word 'multiple'. I think everyone is happy to deal with that right now, and then we can come back to the clause as amended.

Amendment carried.

The Hon. D.J. SPEIRS: I want to speak only very briefly on the amendment that has been put forward by the member for Lee. I want to speak in support of it because I think it provides us that middle way, which achieves much for, I think, the people who were not only concerned about the bill as it stands but also concerned about the amendments I attempted to move unsuccessfully last night. I believe this creates that middle way. As we know, there are many people in the South Australian community, many thousands of people, who have concerns about this legislation, who have concerns about its openness and about the lack of prescription in this legislation.

Obviously, we have heard through this debate that there are people in this chamber who do not have those concerns, but certainly there are those who do, and by supporting this amendment we have the opportunity to create a framework of guidance for our medical practitioners to refer to. We cement that in legislation, and we create that sense, I think, of more confidence in the wider South Australian public that we have translated into legislation a set of guidelines that practitioners can refer to in order to help them make their decisions around those particularly difficult scenarios.

I acknowledge that the amendments I put forth did not cater for those scenarios in a way that everyone would see as satisfactory. While, as I said a number of times, I always want to create as many opportunities as possible for a live baby to be born and nurtured and given a chance at life, I also completely acknowledge that there are a number of scenarios that emerge which my amendment and similar amendments did not cater for.

I think at least by moving this amendment the member for Lee is creating a situation where the medical practitioners can refer to the legislation, refer to these codified guidelines, to help them deal with those particularly difficult decisions, those unique (and they will be very unique) scenarios which need that additional support, that additional guidance. I speak strongly in favour of this amendment because at about 11.30 or 11.40 last night the member for Lee and I were trying to work something up.

We tried to seek a stay of proceedings, so to speak, to do that last night, but the member for Lee has been able to go away and work that out with the advice of parliamentary counsel. There is a very sensible amendment from the member for Colton, which we have just agreed to, and I support the amendment providing more clarity for medical practitioners to undertake their duties under this law.

Ms HILDYARD: Having listened very carefully to both the member for Port Adelaide and the member for Lee, and having been absolutely persuaded and supportive of the member for Port Adelaide's argument that was put forward about the fact that what we have in front of us very clearly refers to guidelines. I am not sure if I am missing something. I say this absolutely respectfully, but I just do not understand, first of all, what having this, when we refer to current guidelines, would actually add in terms of any benefit to the bill. That is the first question. It might be helpful to ask a slightly different question as well.

I am also curious about the phrasing of the bill and the need to have regard to the following set of criteria you have set out in paragraphs (a) to (g) and what that means, what you intend that to mean in practice. Would it mean that medical practitioners could not act on the basis of the provisions of clause 6(1) unless they can tick at least one of those boxes or all of those boxes? Also, would they have to report on their consideration and the ticking of those boxes, whether that is one of the paragraphs (a) to (g) or all of them? Could you please elaborate on that as well?

The Hon. S.C. MULLIGHAN: I appreciate that question, I will say, because I do not want to exhaust any further questions you have—that one singular question that was put to me: what does it add? For me, on the basis of reading clause 6 that was passed last night, most of the conjecture seemed to be around particularly mental health but also subparagraph (ii) about physical health and mental health. The questions were: what does that cover? Does it cover this, does it cover that? The advice was that it covers basically those considerations which are encapsulated in the professional standards or in the guidance notes, particularly, that the royal college had put out.

That is why I said I was grateful for the Attorney's advice, because I had the opportunity to read through it all, and it reassured me that in not just the scenarios that were raised last night but those other scenarios where people are in all forms of difficult situations—under duress and in circumstances beyond their control, let alone having been subject to what could be horrific criminal violations and abuses and so on—a doctor would be able to think they are either in one of these circumstances or something like it and that a termination is appropriate.

The way in which it has been drafted is to require a doctor to have regard—I think you were asking about what that actually means—and consider those sorts of circumstances before they come to a judgement about the provision of a termination. They do not bind a judgement about having to satisfy one of those because they deliberately have been expressed as 'including but not limited to', those famous statutory words that we roll out when we are unable to define everything. So, yes, they provide guidance, but they are not so prescriptive that they cannot go beyond what is contemplated in each of those.

Do they need to report on it? No, absolutely not, in the same way that if you or I or anyone else in this place were to receive a medical service from a doctor, except for limited federal reporting about limited circumstances, that is not required to be reported. In fact, other than what is done for the purposes of the annual abortion report that is presented to this place, I do not believe there is any mandatory reporting about these services at all, let alone the detailed considerations about why doctors reach them. I hope that satisfies your concerns in that regard.

Mr SZAKACS: Thank you, member for Lee. I will not be able to honour him in the way the member for Port Adelaide has, but he also is a neighbour and a fellow aficionado of Big Shed brewery down our way. Very briefly for the record, I would like to explain for my own peace of mind on this matter that the member for Lee has articulated a number of views that were put last night.

My view, though, around the support of these amendments, was more nuanced than perhaps the member for Lee has put; that is, my approach to the regulation around late-term abortions has been to support the primacy of a woman's choice—the primacy of a woman's choice that she has made with her support network and with counselling.

One thing we often lose in this is a woman and her family. A woman and her family make complex decisions, difficult decisions, all the time in this space, and my support for the bill would have been for clause 6 to be unamended. I was and I did support the Attorney's amendments through a matter of pragmatism, a view that a good outcome should not be dispensed with in pursuit of a perfect outcome, and that is the reason I supported the Attorney's amendments yesterday evening.

For those reasons, I cannot and I will not support the member for Lee's amendments, albeit as he has articulated to the chamber now. I do have two matters that I think are worth putting on the record as well in respect of the specific details that the member for Lee seeks to insert in clause 6A, that is, to insofar as practicable, replicate the RANZCOG guidelines.

I have consulted with RANZCOG on this, and with permission of Rosalie Grivell, I will provide what she has provided to me. Secondly, I am keen to hear from the member for Lee if he has consulted with RANZCOG because this seems to be, by any measure, an attempt to sincerely replicate RANZCOG's clinical guidance and thinking. Associate Professor Rosalie Grivell, the chair I think it is, of RANZCOG in South Australia has provided the following:

It is simply not possible to pre-specify and legislate for every possible circumstance. The additional clauses will only further impede the ability of women and their treating team to access the best care and advice. Professional standards, policy and guidelines, credentialing and multidisciplinary team review already provide substantial protection without additional criteria.

I think it is important—from my perspective, having sought out the best professional advice I can get—that I put that on the record, and also in thanking the member for Lee for his contribution in pursuit of that amendment, to clarify that I will not support this, and reluctantly supported other amendments in this section.

The Hon. S.C. MULLIGHAN: I am grateful for the comments from the member for Cheltenham. I understand and recognise his position that he was more comfortable with an unamended bill as it was presented to the house, and he is not alone in that, and I respect that view. Without wanting to put words in his or other member's mouths, I think in part that is motivated because they want the greatest level of flexibility for the medical profession and the medical practitioners who will be involved in decision-making in this area. I completely agree with that.

I am grateful that he has sought advice from the local chair of RANZCOG and her advice, as he has read it out, is that while RANZCOG clearly publishes guidelines and has obviously formed a view that these are appropriate guidelines to inform the judgement of doctors on these matters, they are not comfortable with those guidelines being applied in the legislation. I do not say that facetiously or sniffily. I know there is a difference between a guideline and something which is codified into law.

But I perhaps suspect that the advice that the member for Port Adelaide and the member for Cheltenham have both relayed to us from RANZCOG might have been done on the basis that, as the member for Port Adelaide articulated, this is an exhaustive list, it is a prescriptive list and it railroads the judgement of a doctor. I have deliberately drafted this amendment in a way that does not do that. It provides additional discretion within it. These are merely factors that contribute to the formation of a judgement by the doctor. What is the purpose of them? They serve to give us and the communities we represent some better understanding of what will be contemplated when a late-term termination is provided.

The Hon. V.A. CHAPMAN: I will start by saying that, when I first heard the rationale presented by the member for Lee as to the proposed insertion of clause 6A for mandatory considerations for medical practitioners, I thought he was, after the discussion last night, seeking to insert these by way of a codification of the RANZCOG document, which has been referred to, as necessary to support the veracity of the arguments that were put forward by me in the debate as to what section 6 factors would be included.

To this extent, we went through a debate, which identified in the end that there would be circumstances in which a late-term abortion could occur with two doctors, a prescribed hospital, etc., where there is a risk of loss of life to the mother or the foetus, a physical or mental health circumstance that would result in significant harm to the mother or the woman in question or—and I am paraphrasing—some significant congenital abnormality in the foetus. That is where we landed.

In the course of that argument, having presented that for consideration and resolution by the house, it was asserted, which I maintain, that the provision of 'medically appropriate' would remain in—and it did for consideration by the profession—and that they were still bound by all of their guidelines and professional standards and the like that are outlined in the statute and that the mover of this recommendation to us of this amendment is simply seeking to verify the assertion by me that, in the guidelines category, the RANZCOG late-abortion document was to be considered in that. It is not exhaustive, but he wanted to verify that statement by me by pulling across material from it and attempting to codify it. That was the purpose outlined by the member.

Interestingly, the member for Black outlines a different reason as to why he will be supporting this—because he sees this as some extra protection in relation to criteria that need to be taken into account. Sadly, it will not result in that, I do not think, but only because these are matters to be considered but not necessarily applied. They have to consider them, but they can be completely ignored.

However, what has actually translated is that the attempt to list and codify has not only been potentially inconsistent in attempting to list this but it is certainly not exhaustive. It has resulted in the professionals themselves coming along and saying, 'Look, this is not workable.' In particular, the college themselves, the very people who wrote this guide for their members, state that it was:

Not possible to pre-specify and legislate for every possible circumstance. The additional causes will only further impede the ability of women and their treating team to access the best care and advice. The professional standards, policy and guidelines credentialling and multidisciplinary team also provides substantial protection without additional criteria.

They are saying, 'Whilst you are attempting to keep us to account by putting a list of the examples that are in our guidelines for us to consider, it doesn't help, and in fact it is only going to be unhelpful.' The AMA were a bit more flowery in their language and that has been read out several times.

One of the reasons, I think, which is patently obvious, is that this document alone does not purport to be an exhaustive list. We have already been through many times the incapacity for us here to stand and identify and codify every circumstance. The disclaimer on this document is very clear in saying what this does and who it is for. It is actually a guideline for the professionals. I am happy to read what it says when we return from the adjournment.

Sitting suspended from 18:00 to 19:30.

The CHAIR: Welcome back to the house in committee on the Termination of Pregnancy Bill 2020. When we adjourned for dinner, I believe the Attorney-General was on her feet making some remarks regarding the amendment in the name of the member for Lee.

The Hon. V.A. CHAPMAN: I was indicating to the committee that the Royal Australian and New Zealand College of Obstetricians and Gynaecologists Late Abortion document, which is the subject of the attempted codification in this amendment, has in itself a disclaimer. It states:

This information is intended to provide general advice to practitioners, and should not be relied on as a substitute for proper assessment with respect to the particular circumstances of each case and the needs of any patient.

This information has been prepared having regard to general circumstances. It is the responsibility of each practitioner to have regard to the particular circumstances of each case. Clinical management should be responsive to the needs of the individual patient and the particular circumstances of each case.

This information has been prepared having regard to the information available at the time of its preparation, and each practitioner should have regard to relevant information, research or material which may have been published or become available subsequently.

It is a document designed to provide guidelines to the practitioners and is one of a number of obligations they have to both practise and apply in the operation of the provision of the service in relation to terminations.

I wish to refer to the amendment itself and indicate that, in addition to the professional bodies expressing their concern about the practical application in this attempt to codification, it is in itself problematic. One of the issues that is raised, for example, has already been highlighted—that is, this is a document that is reviewed every three years. In fact, it is due again to be reviewed late next year, having been established back in 2016, and in 2019 had been reviewed and amended, so it is a moving document.

Most importantly, these paragraphs (a) to (g) provisions are matters the member is asking practitioners to have regard to. They must have regard—there is no obligation to provide what weighting they do. There is no guide as to how they might apply that in practice with all the other obligations that they have. Nevertheless, it is an attempt to put it in there again, as I say. It appears that the mover wants to have the veracity of the submissions we put in relation to the debate on clause 6. I am not sure whether that is entirely because the mover of the amendment does not trust me or does not trust the doctors, or both, but nevertheless that is the intent of including this.

Paragraph (a) and the amendment picked up by the member to amend 'twin' to 'multiple' highlights the need to be able to appreciate that we are dealing with the aspect of performing a termination in respect of a foetus where it might cause risk to another, for example, or where risking severe prematurity is to be taken into account in that process. It is a direct example of how these move.

Secondly, what is the purpose of asking each of the practitioners who are considering performing a termination to go through and consider all of the circumstances, which may not apply to the case in front of them? For example, what is the point in having a checklist that requires consideration or having regard to paragraph (a), which relates to the termination of a foetus, if in fact there is not a multiple birth imminent and it does not involve other than a single child?

Most significant is the fact that it seems from the discussions that have occurred in the debate so far that the application of consideration of a termination in a circumstance involving the mental health of the mother is one that has had considerable discussion. It certainly raised circumstances where, unless the other features are evident in the case before a practitioner, the practitioner can still, by virtue of clause 6, proceed with a termination involving someone who is a child who could give a live birth, who has not threatened herself by having a live birth—that is, by carrying the baby to full term—which would otherwise be prohibited.

There are also examples of where an intellectually disabled person may not qualify. Again, if they are able to physically carry the child and it does not affect their life and it is a healthy baby otherwise, they are expected to carry it. These are situations on which clearly members have a different view. I have the view that there are circumstances that are listed which others do not agree to but which do justify, if the doctors consider it medically appropriate, progressing. I think it is actually unconscionable and unacceptable to expect a 13-year-old girl to have a baby, given all the information we have received in relation to the psychological harm that can occur.

Therefore we are left in this rather difficult position, because clearly some members feel aggrieved that the provisions in clause 6 are not strong enough or selective enough or exclusive enough, and therefore, as in the member for Black's contribution, he sees this initiative as something that gives some comfort, it seems, to the conduct of the practitioner in those circumstances. Yet the only one of the examples here of the factors that are to be considered in the paragraphs (a) to (g) list is (f), which provides:

(f) whether medical or psychiatric conditions may become apparent or deteriorate during the pregnancy to the point where they are a threat to the patient's life;

May I suggest that that inclusion will not actually provide relief or comfort to members in this house who take the view that unless the life of the mother, a foetal abnormality, the life of the foetus are not covered, then it should not occur. It will not give them any comfort. It does not actually enliven or heighten or add to a restriction to minimise or reduce the applicability of the provisions in clause 6. So for those who think it will, I think they will be sadly disappointed.

Therefore, we have, in summary, a position of a list of considerations that we make the doctors consider, even if the factors do not relate to the case that is before them. They have to in some way consider them and regard them, but they do not have to actually employ them. There may be other factors that they can still take into account, which of course enables them to proceed lawfully.

So I do not see the benefit in bringing this into the act. It is a living, breathing, moving document. It is a guide to practitioners if it applies to some particular cases, but it certainly does not cover all of the areas of concern where the applicability of a late-term abortion can be lawfully carried out under the current clause 6 if the bill is passed.

I do not think there is anything further that I can add other than to say that if we are going to introduce, on the run, a concept of just simply asking parliamentary counsel to replicate the examples that are used in the code to actually apply in this list, it is inadequate, it is not exhaustive, it will not provide the relief or the protection that some members might think it will, and it can only be that it is being done to in some way try to test the veracity of the assertion that I have put to the parliament, and that is that the practitioners in this field need to comply with a number of guidelines and protocols, etc.

To back that up, I have already made provision in clause 6 for that to occur. We have the retention of the medically appropriate test, which we have heard a lot about, and we have the retention of the obligation to comply with the professional guidelines. As you have heard directly from Professor Rosalie Grivell, not only the professional standards but the policy and guidelines, the credentialing and the multidisciplinary team review all provide substantial protection without additional criteria.

So I suppose that asks the question: if you want to bring in the royal college's current code for the purposes of listing it in this provision, is the next step that we are going to try to introduce all of the others and try to put it all in the act? And then how are we going to manage and control or direct the practitioner as to what weight they give these in the thousands of different circumstances that could come before them, which they need to address, and of which they will have the advice of others in the multidisciplinary team as to the factors that they would be giving advice on—for example, a cancer specialist or a paediatrician, to be able to bring that together and conduct that assessment?

I think that it is an unreasonable imposition in light of the facts that the practitioners' representatives themselves have highlighted, they have been detailed. Although the heading says 'mandatory consideration', it does not in any way specify what weight is to be given if they do not give regard to it, or give half of 1 per cent regard to it, as to whether that would be outweighed by other factors.

I think that is cold comfort to those who have a view that in some way this will help restrict the application of clause 6, and I think the mover of the motion actually acknowledges that, but others, clearly from the speeches that have been given, do not perhaps appreciate that, and if they do, then it does raise the question of whether this whole purpose is completely to try to make it more difficult for the practitioners and/or others' attempt to frustrate the application of the act. It will not stop, in my view, the application of the act. It will be cumbersome, for the reasons set out by the practitioners, for them to have to consider it. It raises an extra layer that is there—

The CHAIR: Attorney, I hate to do this to you, but we have a standing order that limits speakers—

The Hon. V.A. CHAPMAN: To 15 minutes?

The CHAIR: Yes, to 15 minutes. You are now at 13 minutes and I am going to suggest you had a couple of minutes before dinner.

The Hon. V.A. CHAPMAN: I will not need an extension of time. I think other speakers have outlined this. I think the doctors themselves have made it very clear, and I would urge in those circumstances not to make law on the run and that if there is any concern that members have as to the veracity or professional standards of the practitioners, then I think they need to be honest enough to say so.

The Hon. S.C. MULLIGHAN: I appreciate the contribution from the Attorney. Let me start by assuring the Attorney that the motivation for this amendment is not solely directed at her. It is not seeking to try to show her up, or to interrogate the advice that she provided to the house last night, or to try to establish the veracity of that advice or otherwise. I have been at absolute pains in my explanation about this amendment to make it clear to my fellow members, across all sides of the chamber, why I am doing this.

Let's be clear what we are doing in this bill with regard to late-term abortions or late-term terminations. We are changing the current law from the current restriction of 28 weeks and that termination can only occur beyond 28 weeks for a very, very specific reason, and that is to protect the health and wellbeing of the pregnant person or the mother, depending on people's predilections in regard to pronouns. Those are the very tight parentheses that we currently operate under and which we are seeking to change. We are changing them to a regime where late-term terminations can occur beyond 22 weeks and six days, for a very wide range of reasons.

My personal view in large part is that is a good idea because, as we have heard from the contributions that have been made both before the bill came into this place but particularly during the contributions that have been made in the course of last night's debate and today's debate, there are situations where we should have a law that enables somebody to avail themselves of a termination. More eloquent and more specific than my remarks, as I have said, we have had examples from the members for Port Adelaide, Reynell, Hurtle Vale, Cheltenham and others about some of the situations where a tight application of the current law would often preclude people from accessing a termination, and we are trying to fix that.

I do not think it is unreasonable, when we are making it a regime where people in circumstances can access a termination, that this parliament—the members within it and the communities we represent—has some understanding of the sorts of circumstances under which these termination services will be able to be accessed. That is entirely appropriate.

I appreciate that there is a cohort of the profession, perhaps a large cohort of the profession, represented by both the AMA and the royal college, who want the greatest discretion possible to exercise their medical judgement in providing termination services. I appreciate that. I briefly recount the previous comments I made that neither of those organisations necessarily represent the entirety of their memberships, because doctors, whether they are members of the AMA and/or members of the royal college, are just like the rest of us—we have a diversity of views. Nonetheless, they put the view to us that it is their preference to have a regime where they have the greatest discretion and the greatest flexibility.

This is not the first time that we have legislated with respect to a particular profession or group. Let me give you an example. From time to time, there is significant pressure on the parliament to change, for example, sentencing laws. We do not exclusively consult with the judiciary on sentencing laws. We receive their advice and we are grateful for it because they are the ones who deliver the sentences. They are the ones who have to put the law into effect. They are the ones who have to be accountable for the sentences that they hand down.

So of course we consult with them, and of course we take the advice they give us with the weight it deserves, and that is a significant weight. But it is not the only advice we take because we know, for example when it comes to sentencing laws, that we are here to represent the communities that elect us and we are here to represent the state more generally. They may have exactly the same expectations as the judiciary or they may have different ones, but we have to take both into account. We have to weigh them and we have to make a judgement.

I do not think it is unreasonable, when we are seeking to provide a far less prescriptive, far more open and far broader regime for late-term terminations, that when the question is asked, 'What sort of circumstances will it apply in?'—not prescriptively, exclusively and exhaustively but 'what sort of'—we get some understanding of that, we get a range of scenarios and a range of circumstances where these late-term terminations can apply, and that is what we are doing here.

The Attorney herself has confirmed that this is not prescriptive or exhaustive, and it is deliberately designed to be so, because of course we can never think of every circumstance, of course we can never legislate for every circumstance. That is why I have avoided seeking to do so. But when we are making such a significant change in the law as we are, the communities we represent, the communities that elect us, from feedback I have received, want to know what sort of circumstances it will apply in.

This does not restrict the operation of clause 6. This provides some examples. This provides some specifics. It provides a list of considerations, which are not exhaustive, that a medical practitioner must consider, and then they can form their own judgement. This does not restrict their judgement: it informs their judgement. It requires a consideration of these matters. The Attorney says, 'What's the point of having paragraph (a) of the amendment if it's really an issue that refers to paragraph (d) or paragraph (e)?' Well, when somebody comes and says to me, 'On what possible basis does the parliament legislate to allow terminations very late in gestation?' I can say, 'It's these sorts of situations.'

That is entirely reasonable. I know, just like there are in this parliament, there are some of us who want unfettered discretion for the doctors. They say we have had a workable regime for the last 50 years—albeit most unfortunately provided for in a mix of the criminal law and other quite separate health-related legislative provisions—and we have had an arrangement that doctors have navigated effectively based on the best application of their judgement. We are changing that. We are making it more accessible for those people who genuinely need it, so I do not think it is unreasonable.

The final point is: why these guidelines? Why these guidelines if there is a disclaimer on the front of them, or why these guidelines if representatives of the royal college say that they should not be applied to this? The simple reason is that this is all we have. These are the only professional standards that have been presented to us. Not every medical practitioner who will operate in this area under the operation of this act will be an obstetrician and a gynaecologist—they will not be, necessarily. They may usually be. They may be in the vast majority of cases, but they will not always be.

There may be, then, different professional standards that apply to different aspects of the medical profession, but this is all we have. We have them because they have been recommended to us, throughout the development of this bill and in the course of debating this bill, as the appropriate set of guidelines. It is not some trickery that I am trying to visit on the Attorney or the parliament in suggesting these. It is merely to provide some indication, if not comfort, to the community on when these terminations may occur.

It provides the necessary level of discretion to medical practitioners to form their own judgements. It enables the necessary level of discretion to those medical practitioners to form a judgement for a circumstance that is not necessarily set out in paragraphs (a) to (g) within the amendment. This does not constrict, this does not contradict, this does not countervail what we have already agreed to in clause 6.

I understand the trepidation of those members who would prefer not to have this moved, who prefer to have a regime that is as open to medical practitioners' discretion and professional judgement as possible, but it is my view that the community expectation of us is to provide some specificity around this, to provide some examples and to require doctors to have at least a level of considerations that fit those sorts of concerns and examples that we have spoken about to date.

Ms COOK: This is becoming a very longwinded debate about very similar things. I feel like it is almost groundhog day. Just to sum up my feelings in relation to the prescriptiveness around this amendment, again I feel that it disrespects the capacity of the healthcare professionals, not just the doctors but there are many other people who are involved in this. There are nurses and clearly, as we have heard, there are counsellors as well involved in this team, and reproductive medicine specialists. There is a whole range of people who surround the person who presents for abortion services.

We have gone over and over the feeling I have in relation to the capacity of the person or the woman to display some autonomy and reasoned decision-making skills in terms of making themselves available to these services. Just to reinforce that again, I have felt all day that some of the comments feel very The Handmaid's Tale. I feel very much as if the autonomy and the capacity of women to express their reproductive rights in this parliament are being curtailed and suppressed back to a time before I went to a girls' school, and I just feel a little embarrassed about it, to be frank. Anyway, that is not all down to the member for Lee. This particular amendment is not—

Members interjecting:

Ms COOK: Seriously? I digress under his eye. I am concerned about one line of that speech just then, member for Lee, that it will not always be a qualified obstetrician or gynaecologist performing this termination. I am very happy to be corrected on this, so it is a question to you, but I am also happy for the health team that is advising to stand up and tell me: is it not correct that in South Australia for people who undertake these terminations after 23 weeks, particularly, it would always be someone qualified in that regard?

The CHAIR: I will call the member for Lee, and I remind members that they need to direct their questions to ministers or members rather than the advisers.

The Hon. S.C. MULLIGHAN: I will start with that question first. I agree with the basis of the member for Hurtle Vale's question that it is usual or normal in the vast majority of cases that these terminations will be conducted by an obstetrician or a gynaecologist, but that will not be the case always or exclusively. It is easy to consider a medical emergency where an obstetrician or a gynaecologist is not available, where it is not feasible for them to perform those services.

So, even with that one example, it is relatively easy to show that the medical practitioner is not exclusively an obstetrician or a gynaecologist, let alone any of the other elements of the medical profession that the member for Hurtle Vale mentioned in the earlier parts of her remarks. I am sorry that she feels that this is disrespectful; it is not intended to be.

It certainly is not meant to be a curtailment of women's reproductive rights. What we are trying to do is significantly expand them. We are trying to give them greater access to surgical terminations. We are trying to give them greater access to surgical terminations later than the current arrangements allow and for a broader period within the gestation period than the current arrangements allow. I know it might feel like a curtailment compared to the original bill which was presented to the parliament.

But I come back to the point that, while we are grateful for the fulsome advice from the Law Reform Institute and we are similarly grateful for the advice we get from representatives of parts of the medical profession, our obligation is to take that advice and give it the weight it deserves, which is very significant. But we also must take into consideration the concerns, the expectations and, in some instances amongst some members, the values and the judgements of the communities that they represent.

I think this is an entirely reasonable way to frame this so that, again, it does not restrict the judgement of a doctor, does not curtail the decision that they are entitled to make and does not stop them from pursuing a particular course of action. All it does is require them to have regard to a range of the circumstances which are likely to confront this very small proportion of people who seek to access a late-term termination.

Mr PICTON: It is great to be back here for more debate on this bill. The Clerks are working out for me some advice on exactly how long this debate has been going on, so I look forward to providing that update shortly.

I would like to speak briefly because I want to provide my thoughts in relation to the amendment moved by the member for Lee and, in doing so, say that this amendment has been particularly weighing on my mind through the course of today since the member for Lee first drafted it this morning. Firstly, I know that the member for Lee's intentions in proposing this amendment are virtuous in that he is trying to do what is best, he believes, for his community and what he believes is the right outcome. So for those people—and there are a few people tweeting the course of this debate who might say something different—I would disagree with any aspersions on motives in this regard.

I would say that part of the reason this has been particularly weighing on my mind is that we are dealing with words in the particular sections of this amendment that have been drafted by the doctors themselves through the Royal Australian and New Zealand College of Obstetricians and Gynaecologists. This is a document which has been referred to earlier in the debate which is their statement in terms of late abortion. It is clearly a document where they have gone through a process of drafting and redrafting over a number of years. They have a women's health committee with, no doubt, eminent doctors from around the country who provided input. It has gone through their college council, etc.

In that regard, the words in the sections outlined in the member for Lee's amendment are drafted in a way that is appropriate. My understanding from what the member for Lee has proposed to the house is picking up those proposals, in paragraphs (a) to (g), from that document and putting them here. It is coming from a desire to be more prescriptive in terms of what we had decided last night in relation to clause 6 and the significant debate we had around that and the impasse we came to when there was division around that.

I was particularly open to using some parts of this RANZCOG document to help in terms of the issues we were looking at last night, particularly the drafting of subclause (2) that seemed to be of concern to some people. However, what I had not anticipated was that we would be dealing with a proposal to then come later, pick up the whole document and insert it into the legislation. For me, that raises a number of difficulties. I have already outlined in the second reading debate how I came to the position I did in relation to the original drafting that we had around 'medically appropriate', which I regarded as a stronger basis really than going through one by one and trying to articulate that in legislation, which I believe is quite difficult.

I did not say it, but one of the concerns I had was that as soon as you start articulating some things there is a desire to articulate everything. We are now in the field of wanting to articulate a whole range of variables in legislation, which becomes very difficult to do and difficult for us as a parliament to outline appropriately in legislation all of those factors. One factor is that, if this amendment were to pass, this would become a very messy piece of legislation for doctors, for health practitioners, for pregnant people and for authorities to navigate in that you have various sections in clause 6 that have legal tests and now you would have a new clause 6A that would have legal tests as well.

I do not think that the nature of the original statement from the Royal Australian and New Zealand College of Obstetricians and Gynaecologists, as I think the member for Port Adelaide has already outlined, was drafted to be the be-all and end-all on the statement. This was a statement that was put out. A lot of thought clearly went into it, but it made clear itself that it is subject to review. It made clear itself that this might not cover all of the particular circumstances, and the particular circumstances of the person involved need to be considered.

I also do not necessarily think that when those doctors were drafting it, they imagined that they would end up being legal tests that would be incorporated in legislation. I think there is a difference between what doctors may put out as a statement for their own profession and what may be interpreted in legal tests, and I do not think we have had proper consideration of whether that is the case here.

As has been mentioned by other speakers, including the Attorney, I think we already do cover this in relation to clause 6(2), which we determined last night would remain in the legislation, which means that doctors already have to consider professional standards and guidelines that would apply to that practitioner in the performance of the termination.

Lastly, I think that this is now verging in a realm in which we are prescribing many, many things that a doctor must consider before they decide something—pages and pages of sections of an act, which is quite a prescriptive list of things that they must consider that we would have determined. While it has been noted that there is divided opinion amongst the medical profession, I think that a significant majority of the medical profession would have issue with going down that path. While there are aspects of this that I was attracted to, I wanted to outline for the parliament why I have determined that those other reasons are why I am not supporting this amendment on this occasion.

The CHAIR: Before I call the member for Lee, member for Kaurna, I would be the first to concede that this has been a particularly long debate. My sense is that we have a way to go, but what that has done is given members such as yourself the opportunity to contribute and that is what this debate has been all about.

Mr PICTON: I absolutely agree. My brevity and my joyfulness at discussing it was not to diminish the importance of the debate. I hope that we are getting towards the beginning of the end, not the end of the beginning.

The CHAIR: My sense exactly.

The Hon. S.C. MULLIGHAN: A long yet well-chaired debate, can I say. I appreciate the points that the member for Kaurna makes and I appreciate his advice to us that he had thought of treading this road as well, but he is concerned with, again, limiting the discretion of medical practitioners, that he worries about imposing a regime that is too cumbersome and a regime encapsulated in pages and pages of legislation.

If this were a high-volume business and we were being overly prescriptive and it was an onerous regime which a doctor had to navigate, I would have some sympathy with that argument, but the statistics from last year show that of the 92 terminations that occurred after 22 weeks, which I think is the cohort reported in the abortion report we received for 2018, 60 per cent of those were for overtly physical reasons either for the mother or for the foetus, which we had basically canvassed and put to bed, and we are really down to the remaining 40 per cent or 37 in number.

This is not something that a doctor has to wade through on a daily basis or even on a weekly basis. Even on the assumption that only a small handful of medical practitioners will be responsible for forming judgements around this process, they will be doing so rarely. We are likely to end up with something in the order of a page and a third of considerations.

Clause 5 is not what we are concerned with, which constituted the earlier stages of termination, only clause 6 and clause 6A, and of course we have added to that because we have included the requirement for access to information about counselling services and so on. I appreciate the member for Kaurna's remarks and I also assume it comes from the point of wanting to maintain a regime where—

Members interjecting:

The CHAIR: Order, on the front bench! The member for Lee is contributing.

The Hon. S.C. MULLIGHAN: —members have as much discretion as possible in forming these judgements. I just repeat finally: this does not fetter that discretion; this does not railroad that judgement; this does not make the decision for them. These are just considerations that they are required to take into account before forming their own judgement in providing these services.

The committee divided on the new clause as amended:

Ayes 23

Noes 23

Majority 0

AYES
Bell, T.S. Brock, G.G. Brown, M.E.
Cowdrey, M.J. Cregan, D. Duluk, S.
Ellis, F.J. Gardner, J.A.W. Harvey, R.M.
Knoll, S.K. Koutsantonis, A. Malinauskas, P.
Michaels, A. Mullighan, S.C. (teller) Murray, S.
Patterson, S.J.R. Pederick, A.S. Piccolo, A.
Power, C. Speirs, D.J. Tarzia, V.A.
van Holst Pellekaan, D.C. Wingard, C.L.
NOES
Basham, D.K.B. Bedford, F.E. Bettison, Z.L.
Bignell, L.W.K. Boyer, B.I. Chapman, V.A. (teller)
Close, S.E. Cook, N.F. Gee, J.P.
Hildyard, K.A. Hughes, E.J. Luethen, P.
Marshall, S.S. McBride, N. Odenwalder, L.K.
Picton, C.J. Pisoni, D.G. Sanderson, R.
Stinson, J.M. Szakacs, J.K. Teague, J.B.
Whetstone, T.J. Wortley, D.

The CHAIR: There being 23 ayes and 23 noes, the vote is tied. I therefore have a vote as Chair, and I give my vote with the ayes.

The Hon. S.C. Mullighan's new clause as amended thus inserted.

Clause 7 passed.

Clause 8.

Mr DULUK: I move:

Amendment No 1 [Duluk–1]—

Page 5, lines 5 to 28—Delete clause 8 and substitute:

8—Conscientious objection

(1) Subject to subsection (2), no person is under a duty, whether by contract or by any statutory or other legal requirement, to—

(a) perform a termination on a person; or

(b) assist in the performance of a termination on a person; or

(c) provide advice to a person about the performance of a termination,

if the person has a conscientious objection to doing so, but in any legal proceedings the burden of proof of conscientious objection rests on the person claiming to rely on it.

(2) Nothing in subsection (1) affects any duty to participate in treatment which is necessary to save the life, or to prevent grave injury to the physical or mental health, of a pregnant person.

I do not wish to speak for too long, as I foreshadowed my amendment at length in my second reading contribution. But, for those members who have not had a chance to look at the amendment yet (I know there has been a lot of debate over the last two days), I am simply looking to replicate the conscientious objection clause exactly as printed in the current Criminal Law Consolidation Act 1935, being sections 82A(5) and 82A(6), into this bill. The current conscientious objections provisions have been around for some 50 years, and they have served very well in talking to and consulting on this issue. It strikes the right balance, not only for what serves in South Australia but what serves around the country as well in other jurisdictions when it comes to conscientious objections clauses.

There has been a lot of debate about information as we were discussing 6A and the right to choose, and that right to choose for a person is so important in this debate. It is also the right to choose for someone not to be involved in this medical procedure, which is also very important. There is a fear—maybe that fear is not correctly held or is unfounded—that, if there is a watering down of conscientious objections provisions, potentially that will lead to an exit of clinicians out of practice but, more importantly, the ability for deregistration of practitioners for merely being conscientious objectors to the medical procedure around the termination of a foetus.

Right now, doctors, as we know, can object to many requests that patients put to them every day, and the Attorney covered this point last night in her debate. That ability, in terms of conscientious objection, in the matters before us should be no different. The big issue in the draft legislation before us is around subsection (1)(e)(i), transfer or referral essentially, which for many is the key sticking point. We know that to have access to termination services in South Australia you do not need a referral from a doctor.

You can go to the Pregnancy Advisory Centre. You do not need a referral, so to force a doctor to refer I believe is an unnecessary infringement on the conscientious objection rights of medical practitioners. I think in time, if we change these provisions, it will have ramifications in terms of other legislation around end-of-life care that comes before us.

I know we are about to start a debate, probably not long after this debate, in this parliament around end-of-life care. There are of course huge ethical concerns for many in that debate, and if we change the conscientious objection provisions here I think it will have ramifications for us down the track. That is all I want to add for now, but I am sure there will be a debate on this as the night progresses.

Mr SZAKACS: I have a question for the mover. He talked about setting unnecessary or unintended consequence and precedent in future bill considerations we have in this place. In saying that, where do you rely on this statutory conscientious objection in other procedures of health care in this state?

Mr DULUK: I think it goes to the fact that a doctor has a right to conscientiously object in pretty much all elements of their practice. We know there are some caveats, as there are in the original sections 82A(5) and 82A(6). There is no law that compels a doctor to participate as a professional in any activity they are not comfortable with. So I do not know why we would seek to change that in this matter.

Mr SZAKACS: You are right. I certainly do not read your amendment as forcing a doctor to do anything; in fact, what it is doing is putting in a statutory opt-out for a health procedure. Your comment about precedent is one that I am particularly interested in. You obviously are not wanting to set a new precedent with this amendment. What existing precedent do you rely upon in allowing the statutory opt-out for a healthcare procedure?

Mr DULUK: This is not a statutory opt-out. My amendment merely seeks to replicate what has been the standard practice for the last 50 years. The problem is in the draft legislation. As I said, it is 8(1)(e)(i)—transfer. The word 'transfer' is the word that creates an obligation for a doctor to perhaps behave in a certain manner that is contrary to their conscience.

Mr SZAKACS: The reverse onus of proof that you seek to install in this amendment is the existing common law? You said this is simply a codification of the current practice, so the reverse onus against a patient in favour of a doctor is the existing common law?

Mr DULUK: My proposed amendment, the new 8(1) and 8(2) is a straight replication of what is in the current Criminal Law Consolidation Act 1935, being sections 82A(5) and 82A(6). That is already in the original statute. This is nothing new that I have brought to the table; it is bringing the current legislated provisions into this bill.

Mr SZAKACS: I appreciate 8(1) and 8(2). What about the final paragraph of 8(1), which states:

…if the person has a conscientious objection to doing so, but in any legal proceedings the burden of proof of conscientious objection rests on the person claiming to rely on it.

It is the provision of that reverse onus. Your position is that is in the existing Criminal Law Consolidation Act?

Mr DULUK: That is correct; happy to get it out for you.

The Hon. V.A. CHAPMAN: I indicate that, having considered the member's proposed amendment, I do not think this adequately provides for sufficient service to the patient or woman in question. I am advised, again by the health professionals here, that the normal and accepted medical practice involves referral where a doctor involved cannot provide the services themselves—and cannot maybe because they are not experienced, qualified or simply do not want to do it.

Expected standard is a written referral addressed to another doctor who can provide the service. That is the usual practice for all the other things they do. The current provision in the bill developed between the doctors, and ultimately presented to us from the AMA on the basis that this is something they took a long time to work out with the Department for Health and others, is a practice and a provision that allows a lower standard when it comes to the process or procedure that is to apply for conscientious objection for the procedure of termination. What I have said is similar in relation to the other health professionals or assistance in this regard who have a professional obligation.

That is the starting point. I suggest that the terms of the bill, and the structure that has been presented after a very long gestation period (pardon the pun), a very long period, actually already create an environment which in a way relieves the conscientious objector in the envelope of terminations from the higher standard that applies generally. I suggest that this amendment from the member for Waite really absolves them from any duty, and I just cannot see how that is acceptable. I think many doctors would see that as not undertaking the duty and responsibility they have. Therefore, I indicate that I do not support the member for Waite's amendment.

I have reread amendment 110(21) foreshadowed by the member for Davenport. It looks surprisingly like it is lifted from the New South Wales act, so I have some appreciation of how that works. Although it is a little bit broader in relation to the procedure for termination to clearly relate to the performance of a termination, the assistance of termination, giving any advice on it, or even making a decision in relation to it, there is a bit more specificity in relation to the subject matter of which is relevant here, or the breadth of application.

The practitioner here still has to, as per the current bill, tell the patient that they will not do it and that they are a conscientious objector, and either refer them to a practitioner who can undertake the treatment and who they know does not have a conscientious objection, or transfer the person's care to another registered health practitioner or a health service provider.

It goes a little bit further again by making provision that, if there is a referral to another doctor who they understand has the capacity to do that, they can carry out their responsibility if they simply refer them to another service who provides it. So, without specifying another doctor who will do it, it goes to another service who employs persons who are not specified in that referral, so it provides some extra arms of application but, from my perspective at least, does not offend the referral process.

The problem perhaps may be that the notice process is a little bit different. The notice process under the current bill is proposing that we have a prescribed form. I have indicated that it be similar to the New South Wales' process. It is a prescribed form, so it is under regulation and the scrutiny of the parliament, and it has content in it that makes clear the referral of the service. As I have explained to members, in theirs they also have a QR code, a number or a website that you can go straight to for access to that information.

Under the foreshadowed amendment, which is under the New South Wales' model, it is the minister who sets out the rules about what is to apply to the form. I would have to look back at the New South Wales' act, but I am assuming that is the Minister for Health. It could be me; I do not know, but it is a minister. So instead of the parliament by regulation powers as per a prescribed form, it would be by the minister.

I have not spoken to the Minister for Health as to whether he is happy to do that role, but I know that in the other place and in the discussions about how that would be applied, it is my position and the minister's that it be by a prescribed form. Really, the foreshadowed amendment would give that job specifically to the Hon. Stephen Wade to draft something. Goodness me, brevity has never been his strong point but, in any event, we will see how that goes.

It is not an offensive option at all. It is applied in New South Wales and it seems, I am assuming, because they have a prescribed form that I have seen and that seems to be okay, that, if the minister has approved the prescription of that rather than the parliament having oversight of it in New South Wales, then it seems that there has been no offence or harm caused by that process.

I would say to the house that if it is the will of the parliament ultimately to consider favourably the foreshadowed amendment 110(21), then that would be a better option. It would not offend. It is a bit longer. It is a bit more cumbersome. The parliamentary draftsmen know from me that I never like notes in things. I think it is lazy drafting myself, but that is not the mover's fault. That would be someone in parliamentary counsel. It is not ours because I know it has come from the New South Wales' act, so I will blame somebody who is in the equivalent over in New South Wales. They know my view on that here at least. I am sure they will convey that and they probably will not take a scrap of notice. In any event, for all of those reasons, I cannot endorse amendment 110(3) by the member for Waite.

Mr DULUK: I want to touch on a few issues. First and foremost, I would like to thank parliamentary counsel for their forbearance over the last 48 hours. I think they have been absolutely bombarded by members requesting things on the run. I have just a few comments on what the Attorney said in her opening remarks.

My amendment simply seeks to replicate what has been the law of this state for the last 50 years. I am not aware of any issues being presented to any parliamentarian in the course of this debate as to whether they have been approached by an individual who was not adequately advised of any conscientious objections from their practitioner or a practitioner who believes the current regime is not sufficient to not only provide quality health care and advice as they should and as is appropriate but also protect their conscientious objections. I do not think anyone has ever had that experience, which gives me the sense that the current regime actually works.

It has been around for 50 years. No-one has sought to amend it for 50 years because it does work. It is supported by practitioners. As opposed to necessarily bringing in a new regime, let's keep some consistency that has been around now for 50 years. It is supported by many of the practitioners to whom I have spoken on this issue. I am not sure if, for example, the AMA, in changing their position on conscientious objection, went to practitioners and said they are looking to overturn 50 years of legislation without consultation with their members. For any members who have any doubt, what I am proposing is nothing new; it is just replicating the 50-year statute into this new bill.

Mr MALINAUSKAS: I know this an amendment—I have not asked any questions during the course as I have been following it in the chamber—but I can presumably ask a question of the Attorney here despite this being an amendment.

The CHAIR: Yes.

Mr MALINAUSKAS: My question is orientated towards the Attorney. I thank the Attorney for her response to the member for Waite's amendment earlier, but I just want to get some clarity around the Attorney's reservations about this amendment. Is it the Attorney's view that if this amendment were to be successful in its current form, that would then lend itself to a risk of a woman going to a doctor or an obstetrician who then exercises their conscientious objection and then that doctor not having the ability to decline from referring that woman to another service?

The Hon. V.A. CHAPMAN: Thank you, Leader of the Opposition, for the question. This amendment would mean that the conscientious objector could say that they do not do it and that they will not, and convey that to the patient and not have to do anything else. The consequence of that, as outlined in the SALRI report, is that it can leave women, particularly those in a remote area or regional community, even more disadvantaged because pregnancies do not wait.

There is a time element here. If you have gone to see somebody and they say, 'I won’t do it,' and then you are sent away, then you have to actually find someone else who can do it. Time is of the essence in relation to this. The current proposal in the bill that I have presented, consistent with SALRI's recommendation and even still giving a much lower threshold for those conscientious objectors, is to not make them have to refer to somebody else that they know is willing and able to do it. That is an option, but they can also just send them to the website and say, 'Here is the QR code. You can go and get that information yourself.' Then it is up to the health department or a publicly funded free service they authorise to make that provision. That is the current position in the bill.

The member's amendment that is foreshadowed takes the conscientious objector out of any responsibility or duty they have as a medical practitioner in relation to the general conscientious objection and says all they have to do is tell the woman that they do not do it. They have no obligation to refer at all to anyone or anything. That is a potential disadvantage, particularly for those who may not have any other local doctor in the town or may be regionally remote and then would have to go and find out or have to come to Adelaide perhaps and seek other advice. They might get it fairly quickly, but one of the issues that was raised by SALRI and that we have had plenty of material on is the vulnerability of women in a regional community in being able to get access to this service.

As I said, it is not a condition for which termination is being sought as a management or a process of it that can wait. There is frequently a time when the woman in question is flush up against the current legal limit before prosecution can set in. In any event, that is the difficulty they face. Here is a practical example: if they sought advice when they were three weeks pregnant or they went in and had a pregnancy test and, bingo, they are in the very early stage, it clearly gives them much more time to be able to do that. That's really the situation.

The foreshadowed amendment of the member for Davenport is following the New South Wales model. It is a little bit wordy and a little bit more cumbersome but nevertheless reflects what we are proposing in the bill. Instead of having a prescribed form of what has to be in the notice of referral, he is suggesting that be a format approved by the minister, as distinct from a parliamentary prescription process.

Mr MALINAUSKAS: In terms of the prescribed form, you gave the example of a QR code. Would the QR code potentially represent the prescribed form that would then relieve the conscientious objector of their obligations, or would it allow the conscientious objector to meet their obligations and provide assistance to that woman?

The Hon. V.A. CHAPMAN: No. The document, which I read out earlier—I will not repeat it again—is a full document, it has a heading. In essence, if you are pregnant there are a number of options.

Mr MALINAUSKAS: Would it have the Pregnancy Advisory Centre details on there, for instance?

The Hon. V.A. CHAPMAN: It does, yes. You need to go to it. All we are asking the conscientious objector to do is to hand in this form, which has the heading, if you need counselling services in relation to continuing the pregnancy, having a termination, seeking counselling services. You can ring this number, you can go to this website or you can use this QR code and it will take you there directly. It is really just a mechanism by which you go to the health department to get that information. Back in the health department they have that information and referral including, of course, the Pregnancy Advisory Centre as an agency which can undertake that service, depending on whichever service they seek to have.

Ms HILDYARD: I have a question for the mover of the amendment, the member for Waite. In thinking about his proposed amendment, I was thinking about the various circumstances that were raised when we were debating the Minister for the Environment's amendment last night—circumstances that, when I think about them, I find very distressing. We traversed the circumstances of a woman with a serious mental illness, where she may deny that she is even pregnant, who is suffering severe psychosis; we traversed the circumstances where a child who has been raped seeks the support of a medical professional; and we traversed the circumstances where a woman with disability has been abused by her carer and seeks those services.

When I was thinking about the member for Waite's amendment, I wanted to ask him how he can justify as the mover the absolving of a practitioner from having any responsibility whatsoever to provide any support, any advice, any referral whatsoever to any woman seeking a termination; but, particularly, when I thought about those distressing circumstances, how on earth he could absolve a practitioner from any responsibility to provide any advice, support, guidance or a simple referral?

Mr DULUK: Member for Reynell, I do not seek to absolve anyone from any decision that they make. All I simply seek in my amendment is to replicate current practice. If there is an example that you can provide where in current practice today, yesterday or over the last 50 years someone has been denied a referral for the situations that you have explained, I think that would be very beneficial for the parliament to know because that is what here we are to legitimately sort out. If that is the case, then maybe there is some room for further amendment.

All I am seeking in my amendment is to replicate exactly what is in the current law that has been in place for the last 50 years. If there are examples, I think that would be to the house's benefit. Of course, there are the examples you mentioned should a person have psychosis. Of course, there are psychiatrists and other matters of health professionals. I do not think it is just one matter at hand in that regard. So if the current law is wrong, it would be good if there was an example of that.

I have a question for the Attorney, and perhaps through the assistance of her adviser. Roughly, I think in 2018 there were some 4,415 terminations in South Australia. Are there statistics kept on what percentage of those terminations are performed via referral or via someone just themselves presenting at the Pregnancy Advisory Centre? Is there a distinction in those statistics and how they are kept?

The Hon. V.A. CHAPMAN: I do not actually have the last report in front of me, but I will see if I can find it. I do not recall that. I read it every time they lodge one here, because I think, as a member of the parliament, it is reasonable that we keep an eye—it is all of our responsibility—on this issue, especially as I had asked SALRI to do a comprehensive assessment. I look at what age group the cohort is, whether they are married or unmarried; these are the sorts of data. It is in graph and in figure form, and for me it actually dispels a whole lot of myths about terminations. From my recollection, there is no identification of whether the procedure has been undertaken after a second consultation.

Again, I am just reminded that in relation to the referral, whilst the member says it is the current practice of conscientious objectors in this field not to refer, I do not know the answer to that, but I have certainly heard that is the case. That is something they want to preserve their right to do; they see it as, 'We just want to tell them we are conscientious objectors, and we want nothing further to do with it.' I would suggest that that is actually in breach of the current obligations they have as a practitioner anyway in relation to conscientious objection standards imposed by their own professional bodies.

Leaving that aside, I accept in the presentation of this bill that in terms of conscientious objection in this area—and I have taken the same view in relation to areas such as stem cell research and harvesting and things of that nature—a health practitioner, a doctor or otherwise or someone who is an assistant, which is to deal with the nursing profession particularly, needs to be able, particularly in this area, to have the opportunity of conscientious objection with a lower standard. So we are not even expecting them to say, 'Look, I know someone else who can do it, and here is a referral, their name and address or number.' In this instance, they just have to send them to the website or the telephone number with the form.

I hear what the doctors are saying that have come to the member for Davenport to have a continuation of their standard. I am actually not sure whether they are complying with their own rules. Notwithstanding that, I am certainly happy to relieve the conscientious objector from having to sit down and do a personal referral, as would apply in relation to any other thing they were not doing in the health procedures.

SALRI have put their recommendation on this, but the actual working out as to how that would work to give conscientious objectors that opportunity, that is where the AMA and other professional bodies have got together and sat down, I think with the health department originally, to look at how this should best be the model, because we were looking at a health model, and that is what they have come up with, which is replicated in the bill.

Whilst I appreciate the people who are constituents or otherwise who are coming to you—not you, sir, but to the member for Davenport—I do not agree with that process.

An honourable member: Waite.

The Hon. V.A. CHAPMAN: To the member for Waite, I'm sorry. Davenport is okay so far, for a change.

Mr DULUK: Attorney, I think we might be going backward and forward all night. The way that current conscientious objection is undertaken by the profession is in accordance with the statute at the moment. That is merely what I am seeking to replicate in this bill tonight.

Amendment negatived.

Mr MURRAY: I move:

Amendment No 1 [Murray-2]—

Page 5, lines 5 to 28—Delete clause 8 and substitute:

8—Registered health practitioner with conscientious objection

(1) This section applies if—

(a) a person (the first person) asks a registered health practitioner to—

(i) perform a termination on another person, or

(ii) assist in the performance of a termination on another person, or

(iii) make a decision under this Act whether a termination on another person should be performed, or

(iv) advise the first person about the performance of a termination on another person, and

(b) the practitioner has a conscientious objection to the performance of the termination.

(2) The registered health practitioner must, as soon as practicable after the first person makes the request, disclose the practitioner's conscientious objection to the first person.

(3) If the request by a person is for the registered health practitioner (the first practitioner) to perform a termination on the person, or to advise the person about the performance of a termination on the person, the practitioner must, without delay—

(a) give information to the person on how to locate or contact a medical practitioner who, in the first practitioner's reasonable belief, does not have a conscientious objection to the performance of the termination, or

(b) transfer the person's care to—

(i) another registered health practitioner who, in the first practitioner's reasonable belief, can provide the requested service and does not have a conscientious objection to the performance of the termination, or

(ii) a health service provider at which, in the first practitioner's reasonable belief, the requested service can be provided by another registered health practitioner who does not have a conscientious objection to the performance of the termination.

(4) For the purposes of subsection (3)(a), the first practitioner is taken to have complied with the practitioner's obligations under that paragraph if the practitioner gives the person information approved by the Minister for the purposes of that paragraph.

Note—

The information to be approved by the Minister is to consist of contact details for a SA Government service that provides information about a range of health services and resources, including information about medical practitioners who do not have a conscientious objection to the performance of terminations.

(5) This section does not limit any duty owed by a registered health practitioner to provide a service in an emergency.

There has been some confusion about who is the member for Davenport and who is the member for Waite, etc., and I realise that I run the risk of also being known as the member for Copy and Paste—pardon me for the dad joke at this late hour.

The amendment I am proposing is unashamedly based on the New South Wales legislation. I would submit that it has several advantages over what is currently proposed in the act, and as a result I commend it to the house. The first and obvious advantage is the fact that it is an applied and tested process. It is in place and functional at the moment in New South Wales, for what that is worth—it is not a theory it is a practical reality.

The Attorney has made the point that there are some extras here. She has used the term 'cumbersome'. I respectfully, politely and almost deferentially submit that in my view there is probably some advantage in the extras in the New South Wales legislation, so what I propose to do is to quickly step through those and highlight what I think are, as a consequence, refinements to what we have before us insofar as the act is concerned.

The first point is that what is being proposed here covers off or agrees with what is in the act insofar as the performance of a termination or assistance with a termination, so there is no difference in that regard. The amendments I am proposing additionally, unlike the current act, make allowance for someone who is making a decision about a termination to also have, express or hold a conscientious objection. So you have that additional or incremental capability, if you will, insofar as people who are involved in making the decision and, at (1)(a)(iv), advising someone who is involved with the performance of a termination.

It is a slight refinement. I would suggest that what it does is provide clarity about those incremental groups: people who are not just performing the termination but people who are also assisting the termination. It also gives clarity to the people who are advising or who are making a decision on someone else's behalf that they have the right to a conscientious objection.

The second broad group of incremental change is the fact that insofar as transferring care is concerned, again, this amendment replicates what is currently before us in the bill insofar as requiring transfer of the person's care to another health practitioner, but it makes the point for the sake of clarity, and I would suggest given the South Australian landscape it is a worthwhile piece of clarity, in that it provides for a transfer, alternatively, not just to a health practitioner but to a health service provider (in other words, the Pregnancy Advisory Centre).

Again, for the sake of clarity, for what it is worth, a person's obligations for transference are taken care of if the transfer is conducted to a health practitioner or, alternatively, to a health service provider. The Attorney has pointed out the fact that, rather than a prescribed form, in this case we are talking about a form which is signed off or approved by the minister, so there is the accountability that you have as a consequence, and the note, which the Attorney has pointed out—and the blame lies squarely with those folk in New South Wales—provides some indication as to what sort of detail should reside in the form.

It talks about, for example, that it should consist of contact details for a South Australian government service. It provides information about a range of health services and resources, including information about medical practitioners who do not have a conscientious objection to the performance of terminations. It is self-evident, but nonetheless it provides some indication as to what should be as a minimum in that form.

The final incremental change—and, I would submit, slight improvement, for what it is worth—the amendment provides is an incremental clause that, for the sake of clarity, points out that this section does not limit any other duty owed by a registered health practitioner to provide a service in an emergency. It clarifies the fact that a conscientious objection is not in and of itself a means whereby emergency services, or service in the case of an emergency, can be provided. On that basis, I commend the amendment to the house.

Ms STINSON: I might put two questions together, if that is okay; hopefully, they are fairly simple and straightforward. First, I wonder whether the member could enlighten me on whether this is word for word what is in the New South Wales legislation and if anything has been left out, or if there is any context that is not present in this that might be in the New South Wales legislation. Secondly, I wonder whether he might let me know what 'reasonable belief' means in the context of his proposal.

Mr MURRAY: For clarity, this is a word-for-word lift from the New South Wales legislation with one exception: the New South Wales legislation makes reference in section 4 to the secretary to the department. My amendment is effectively the equivalent. Insofar as 'reasonable belief' is concerned, please help me out as to where that is.

Ms STINSON: 'Reasonable belief' is mentioned few times: once in (3)(a) and then in (3)(b)(i) and again in (3)(b)(ii).

Mr MURRAY: I cannot and do not propose to ascribe any particular or unique meaning other than the normal meaning of the words 'reasonable belief'—that is, a belief presumably formed on the basis of the fact of the evidence before the person who is seeking to exercise their conscientious objection. In the New South Wales act, to the best of my knowledge, there does not appear to be any particular distinction or unique meaning ascribed to those words. That is simply, as far as I can ascertain, the means by which the clause has been fashioned.

Ms STINSON: I know we do not really do supplementaries, but may I ask a consequential question of the Attorney on the same matter?

The CHAIR: Certainly.

Ms STINSON: Thank you. I understand that 'reasonable belief' does have meaning in terms of the criminal law, and I wonder if that meaning comes over into this legislation, or whether a different meaning or any variation of the definition that is generally applied in criminal cases would apply here. I am also particularly searching for whether a medical practitioner would have to satisfy themselves in any way of the capacity of another medical practitioner to perform or be willing to perform terminations, or whether, for example, it would be sufficient for them just not to be aware they have an objection?

The Hon. V.A. CHAPMAN: I can perhaps clarify as best I can; I am not here to give legal advice. 'Reasonable belief' in the ordinary meaning has nothing to do with criminal law but is reasonable belief on an objective test. That is, an ordinary person would be the standard, not necessarily the subjective test, which is just what I might think and which might not be reasonable or consistent with what the general community or an ordinary citizen would have as their standard. Subjective means I just think it and it does not matter how unreasonable or how ridiculous it is, as distinct from a reasonable belief of a person such as yourself.

So we have an objective or subjective test. This proposal, as best I read it, is using 'reasonable belief', which would require that standard to be against a standard objectively as distinct from just what the practitioner might think. The proposal in the bill that I have presented for conscientious objection is a practitioner's opinion, which is subjective. It is not the standard of the President of the AMA's opinion or what might be objective for doctors generally but is in the practitioner's belief.

In my proposal, if the practitioner believes that this other person who they are referring them to is able and willing to do this service and sends them, and they can establish that they have given the adequate notice under the form we have identified, then they will have satisfied their obligation. In fact, we have an extra clause in ours to say that if they use the prescribed form they will have that protection. The proposal of the member for Davenport uses 'reasonable belief', which may well attract an objective test, in which case it may be a little bit of a higher standard. But it is his amendment.

Ms Stinson: A higher standard than what you are proposing?

The Hon. V.A. CHAPMAN: Yes. It would have an objective test, which may make it even harder for the conscientious objection exemption to be achieved, but I will leave it for the member for Davenport to prosecute his case.

Mr MURRAY: I might just reply. I am comfortable with the fact that this is in operation today in what I think is the most populous state in the nation. I would simply make that point and leave it at that. I would also make the point that there is some comfort being derived in some quarters with some members because of that very fact, I believe. I guess we will see. Insofar as the distinction is concerned, I do not believe it is immaterial, but I do not believe it is overly onerous either. I guess that is for others to decide.

Ms STINSON: I have one more question if none of my colleagues want to avail themselves of the opportunity right now. I wondered if the member had any examples, particularly from New South Wales, of the type of form that might be provided. Under subclause (4), the note essentially talks about what looks like a flyer or some printed information that would be provided on 'a range of health services and resources, including information about medical practitioners who do not have a conscientious objection to the performance of terminations'.

I just wondered if there is anything in existence already that could be provided that would give some indication of what exactly that material might look like, what sort of information it might contain, so I could satisfy myself that what is being provided is of assistance.

Mr MURRAY: The obverse, respectfully, is the case, and that is that what is proposed in the bill simply states 'a prescribed form'. That is an issue for a number of doctors and practitioners, who have made the point to a number of us, me included, that they are concerned about the indeterminate nature of what will be required of them to complete the form. The form is not defined; the form will be subsequently defined. The attraction of this particular amendment as a consequence is the fact that it provides some guidance and more particularly it provides for an approval process, notwithstanding the Attorney-General's point that the prescribed form will presumably at some stage be put through the parliament and approved.

The concern in the community with doctors who are likely to exercise the conscientious objection is that they will be subjected to an overly onerous reporting obligation by virtue of a lack of detail in the bill. That in turn is part of what has driven an attempt to embrace a proven structure format, replete with the notes. I am not a legal practitioner; I am happy to have the notes there.

I would probably prefer, like the Attorney, to have better detail, but the point is that the objective with the amendment, in part, is to provide comfort, certainty and security to those practitioners who are unnerved by what is proposed in the bill and in particular are concerned that they will be, if you like, punished by way of form filling. That is a real concern that has been expressed to a number of us.

The obverse is actually the case. The proposal of what functions in New South Wales and the structure is what has driven, or is provided, in response to the uncertainty and the reticence and the reluctance of the concern expressed by practitioners with regard to the indeterminate nature of what is in our bill here before us. I hope that helps.

The CHAIR: Member for Kaurna.

Mr PICTON: Thank you very much, Mr Chair. I know you will be interested to know that I think we have just clicked over 18 hours of debate on this legislation. That is not to say that it is a good thing or a bad thing, but just to note it.

The CHAIR: Does that include the second reading speeches?

Mr PICTON: It does include the second reading speeches, and well chaired through all of the debate. I have been trying to get my head around the difference between the member for Davenport's amendment and the Attorney's proposal in the bill as it stands. One of the differences, from what I can read, is that currently the bill in clause 8(3)(b) makes it clear that this section does not limit any duty owed by a registered health practitioner to provide after care or ancillary medical treatment associated with a termination, whereas in the member for Davenport's amendment there is a section similar to the Attorney's in relation to emergency care, but it does not involve after care or ancillary medical treatment.

I guess my question to the member for Davenport is: is that an intentional change, so there would be a conscientious objection to providing ancillary care to that person? I guess the other alternative is that, just because we do not mention it, maybe there still is an obligation that could be interpreted otherwise, and maybe the Attorney and her legal advisers have a view about whether if it is not mentioned, that would still be something that would necessarily be provided. Would the member for Davenport like me to summarise my question?

Mr MURRAY: I have been challenged to summarise your question.

Members interjecting:

Mr PICTON: I will summarise my question again.

Mr MURRAY: No, I am—

Mr PICTON: You have it?

Mr MURRAY: Yes. I will not take up the opportunity to comment on how long we have been here, etc. Your point is taken regarding the incremental protection that is offered in the bill before us compared to what is proposed by way of this amendment. I simply reiterate, for what it is worth, the fact that this is functional and the fact that this provides some comfort to others.

Insofar as your points are concerned about whether or not we need (3)(a) or (3)(b), to make matters easier what I suggest we do is one of two things, which is entirely at your discretion. You can either move to add those—I am happy with that—or we can move to a vote so that we can all go home at some stage over the course of the next week. I am not overly fussed.

The offer here is very simply the fact that it does provide some incremental refinement in part and it does have some incremental functionality which I think is useful. Yes, it is not identical. Whether the deficiencies or what you pointed out are material or not, I would suggest they probably are not. That is something for you to ascertain. I do not propose to address it. I am happy that this is (a) functional and, more particularly, (b) will go some way to addressing the concerns of medical practitioners who have indicated some concern about the provisions in the bill.

I apologise for not being able to provide you with more comfort than that but I cannot be clearer than that. As I said, I think that overall the objective is an honourable one. As I have pointed out, I am the member for Copy and Paste here. I am not the author; I am certainly not the original author, I will put it that way.

Amendment carried.

Members interjecting:

The CHAIR: Order! We are making great progress here.

Members interjecting:

The CHAIR: Order! The next question before the Chair—member for Schubert, you need to pay attention, as we are about to vote again. The next question before the Chair is that clause 8 as amended be agreed to.

Clause as amended passed.

New clause 8A.

The Hon. V.A. CHAPMAN: I move:

Amendment No 5 [AG–1]—

Page 5, after line 28—Insert:

8A—Health practitioner must not terminate pregnancy for sex selection

(1) Subject to subsection (2), a registered health practitioner must not perform a termination of a pregnancy for the purposes of sex-selection.

(2) Subsection (1) does not apply to the performance of a termination if the registered health practitioner is satisfied that there is a substantial risk that the person born after the pregnancy (but for the termination) would suffer a sex-linked medical condition that would result in disability to that person.

I indicate that this is to provide for the prohibition of a health practitioner against terminating a pregnancy for sex selection. Members have raised concerns about the absence of a prohibition of sex selective abortions. As I stated earlier, I do not think anybody in this room supports sex selective abortions and we all accept that this issue needs to be addressed.

However, I do not consider that the member for Playford's proposed amendment—and we have talked about this—will adequately address those concerns. In particular, the amendment would make it an offence for any person who performs or assists in a sex selective abortion. This could potentially capture a pharmacist or other health practitioner whose only role is to dispense or administer medication and who is otherwise not involved in the decision-making process as to whether or not termination occurs.

I also have concerns about the defence proposed by that amendment that is foreshadowed. Currently, it provides that it is not an offence if the health practitioner is satisfied that there was a significant risk that the person born after a pregnancy, but for the termination, would suffer a sex-linked hereditary medical condition that would result in significant disability to that person. I am advised that there are sex-linked conditions that are not hereditary, which could nevertheless result in significant disability to a person.

The amendment I am proposing and I present for consideration to address the concerns of members who want to make sure that there is not an opportunity for sex selection, as we have had presented to us, that an expectant mother may take the view that she might already have female children and she does not want another female child and she wants a boy, or the other way around, then it is not acceptable that they be able to terminate a pregnancy just to be able to satisfy that aspiration.

I would suggest that the amendment proposed here will address these issues by ensuring that there is a workable provision which prohibits the practice of sex selection abortions but, importantly, will also make it clear that disciplinary action may be taken against a health practitioner in the event that they perform a sex selection abortion contrary to the act. I think there is clearly an appetite for it. I am proposing that we have a provision. I think this is the safest option. I have considered the member for Playford's position and have taken advice on it. Therefore, I will not be able to consider his proposal as being appropriate, but I commend amendment No. 5 standing in my name for consideration.

Mr BROWN: I would just like to respond. I would like to thank the Attorney for considering the amendment that I had drafted to another clause and to thank her for, I know, consulting widely with colleagues about this particular issue. I was motivated to move my own amendment after this very important issue was raised with me not only by colleagues in this place but also by people in my own electorate and their concerns about this particular issue.

I speak not just as a parliamentarian and a South Australian but as someone who has three beautiful daughters of my own. The idea that someone would seek to have a termination of a perfectly healthy baby girl simply because of the sex selection I find particularly abhorrent. I know there are a number of members of the parliament who would do the same thing, so I thank them for their assistance.

I know this amendment the Attorney has moved is not exactly the same as that which I have moved myself, but I do think it achieves quite a lot compared to what I have put forward, so I indicate to the chamber that I would be happy to support the Attorney's amendment and withdraw my own, if hers is successful. I understand that my colleague the member for Light is likely to seek to have the word 'significant' added in, which I am also happy to support, if he should do so, but I will let him explain his reasoning behind that.

One thing I would ask the Attorney just to clarify to the chamber is that she stated that there were a number of disabilities that were sex-related but not necessarily hereditary, so I wonder if she might indicate to the chamber what some of those might be.

The Hon. V.A. CHAPMAN: Thank goodness the professor is here. To assist the member, my understanding is that in the non-hereditary category it can be a thing called the fragile X circumstance. It is mostly in boys, I am told. I can see the nurses nodding. They know what this is. My understanding is obviously they have an X and Y and they do not have two XXs, which we girls have, so we are a bit better than that, we can deal with this and they cannot.

The fragile X factor, apparently, can result in the infant having seizure disorders and also quite severe intellectual disability. It can be hereditary but it can also be spontaneous. If it is a non-hereditary fragile X factor which translates into these disabilities, then that would be a circumstance that would qualify in what we are covering. Otherwise, I assume it is just the usual haemophilia and all the other things you can get. Boys are usually the problem.

The CHAIR: I think we are getting sidetracked here, Attorney.

The Hon. A. PICCOLO: I would like to move an amendment to the amendment as follows:

Insert the word 'serious' after the words 'that would result in' in subclause (2)

This would make it consistent with the rest of the bill.

The CHAIR: So that would read, 'that would result in serious disability to that person'; is that correct?

The Hon. A. PICCOLO: Yes.

The Hon. V.A. CHAPMAN: Can I say that I agree to that amendment on the basis of the advice I have received. I should explain that the word 'significant' was considered in this regard. The health professionals need to be able to identify. To give an example—it helps me anyway— haemophilia or colour blindness may not be seen as serious or significant, or whatever adjective you want to use to identify that, because it is a treatable condition, whereas in the fragile X option that I have indicated a serious intellectual disability may well result. However, I am advised by the health professionals that that is sometimes very difficult to diagnose.

Perhaps we are talking about the hypothetical in many ways, because we do not actually appreciate that there are any sex selection practices happening in Australia; nevertheless, this is one of those pre-emptive strike additions and we are trying to do the best we can. I think we have an understanding of what we are talking about here: someone can be born with a disability that is eminently treatable and manageable during their life, and no-one is suggesting that would attract a defence in these circumstances.

Amendment carried.

Ms COOK: In relation to this amendment that introduces some parameters around gender selection and termination per se, I would like to make a contribution and put on notice that I do not support this amendment. I appreciate the work the Attorney has done and why she has done it, but in my heart I do not think she supports it either. However, sometimes we need to do the things we do in parliament.

I think it is dog whistling at best. In my career of nursing, I have never experienced coming into contact with women seeking termination purely on the basis of gender. I have spoken to dozens of people working in reproductive medicine and health, in pregnancy services, and there is no occurrence of this. This is just not happening.

Some people argue, 'Well, then it's okay, just do it, because it doesn't mean anything,' but actually it does. It is a statement to the community that we think there are people out there in our community who are prepared to terminate a baby on the basis of what gender it is because they do not want girls or they do not want boys or they want girls or want boys. It is atrocious. That notion is wrong, and for that reason I will be voting no, and I want to place that on record.

The Hon. V.A. Chapman's new clause as amended inserted.

New clause 8A.

The Hon. R. SANDERSON: I move:

Amendment No 1 [Sanderson–1]—

Page 5, after line 28—Insert

8A—Registered health practitioner to provide information about alternatives and risks

(1) A registered health practitioner must—

(a) when providing advice to a person about the performance of a termination; and

(b) in any case—before performing a termination on a person,

provide the person with information about the procedure, alternatives to terminating the pregnancy and the physical and mental health risks associated with terminating a pregnancy.

(2) A registered health practitioner will be taken to have complied with subsection (1) if the practitioner gives the person information in the prescribed form.

This amendment is in response to multiple constituents contacting me. One in particular stood out. She lives in regret of her decision and believes that had she been given the appropriate and fulsome information she may have been able to make a different decision.

I believe that at the point of seeing a doctor to find out about an abortion, you should be given all the information about the health risks, the mental health risks, as well as the options as far as adoption, Centrelink payments, assistance and counselling. I know we have already passed the counselling legislation; this could be incorporated. There is no penalty—I removed that. It was in there originally and I removed it as it is not meant to be about penalising the doctor for not doing it; it is meant to be about informing people to make an informed decision. It is not about changing a decision but just making the right decision and being aware of all the facts in order to do that.

I believe the counselling could be incorporated into this information, whether it is a pamphlet or an online service through the health department. It is important to make sure people have information on the full risks and alternatives available to them before they make such an important decision.

The Hon. V.A. CHAPMAN: I certainly have had discussions with the member for Adelaide on her attempt to make sure someone who is embarking on the consideration of this procedure of termination needs to have information about alternates, that is, presumably to have the baby and to then consider what options might flow from that. I have previously said that it may be assistance from relatives with supervision, foster support, adoption, having the baby at home with them and raising the child and/or considering, for example, guardianship with another party. There are a number of options, including essentially having the child at full term and then considering options for the raising of that child separately.

I think they are all aspects to be considered in relation to the counselling, which specifically is already now required to be done. In reading out the New South Wales options, they have to consider the options, including when continuing the pregnancy (so that obviously includes adoption and foster care and so on), termination of the pregnancy (it is fairly clear what that is) and seeking pregnancy options counselling. We are already at a stage now where we have covered that they have to have access to the full gamut. It is then up to the expectant mother to then pursue that or take any notice of what advice they are given. I think we have dealt with that.

Another aspect of this amendment is to explain the physical and mental health risks associated with terminating a pregnancy. It is information about the procedure, alternatives to terminating the pregnancy, and the physical and mental health risks associated with terminating the pregnancy. I have dealt with the second, which is the alternatives, giving advice and having access; that is now covered. We are left with giving information about the procedure and what the physical and mental health risks are. These are prerequisite in the suite of obligations that the health practitioner has to give to ensure that there is informed consent before the procedure can take place anyway.

This is not a question of what advice you can get (I hope I am saying this right, professor. So far so good? Okay.) or of incorporating this in an information transfer or in a counselling session. This is an obligation of the health practitioner to explain what the procedure is before they embark on it. For example, if it is the medical option that oral tablets will be taken over a period of time, it has to be explained what the expected outcome of that will be and how it will occur, depending on the condition of the mother presumably and the advancement of the foetus. It has to be done within the nine weeks. There has to be a procedure for an ultrasound, a blood test, and I cannot remember what else, but there is a process that they have to go through. All of that procedure and risks need to be explained to the expectant mother.

If there is not the greatest impetus for a health professional to explain this and to do it comprehensively it is the fact that they pay probably the highest insurance premiums of any professional in the country. They have a very clear obligation to get informed consent. You cannot get informed consent if you do not give the information, so there is an obligation to provide it. You line up to AHPRA if you do not, that is, you contravene that.

Thirdly, let me tell you, because I am someone who has to deal with applications for things that go wrong in health procedures and their multimillion dollar claims, there are insurance obligations. Of course, as usual with these things, if you have a professional and you have insurance, you can bet your bottom dollar that the insurance policy makes it very clear that they might be paying out of their own pocket if they do not get the insurance cover, if they have not complied with all the obligations. There is a three-structured outcome and consequence for noncompliance.

Whilst I fully appreciate the member for Adelaide's concern here, that is a requisite before they can undertake such a procedure, whether it is medical or surgical, and I do not need to go through all the detail about what is required for the surgical intervention at a later time, that is after the nine weeks. Suffice to say, there are probably not many of us in this room who have not had some sort of surgical procedure for something at some time.

There are obviously risks with anaesthetic; there are risks for people who have pre-existing conditions, with comorbidity and other circumstances that may increase the level of vulnerability for things going wrong. These are all the things that the doctor and/or health professional needs to set out very clearly to ensure they have complied and that they are insurable and that they are not going to be fronting up before AHPRA.

I agree with everything the member for Adelaide has said in respect of making sure that happens, and there are other means by which the registered health practitioner must do that anyway. As to the alternatives, I think we have covered it in the list. As I indicated before, if there is other information, people can to go to the department website. If on the website there is something else that any members think should be added to assist a prospective person who is looking for a termination, having made that decision to progress it, then please let me know. I am happy to pass it onto the Minister for Health to add to the health department's services.

The Hon. R. SANDERSON: Just for clarification, the amendment that we passed earlier, from my understanding, was about requiring counselling. I am not wanting everybody to have to go to counselling to find out the information. I am wanting them to find all of the information they require in a brochure at the first point of call, at their local GP or wherever they have gone.

The women who have come to me and shared their very moving stories have made it sound to me that, when you go to a GP, you are in control, you are a working woman with a job, with a husband, with children already. You say you want an abortion. They just send you for an abortion. You are not given any other information. You are not given any alternatives or any other opportunity to think about it. It is just all booked in and it is done.

Those I have met with have then lived with regret about that decision for decades afterwards. It is too late to find out at the time of going into surgery. I think it needs to be information that is readily available. You should not have to wait weeks or however long it would take to get a booking with a counsellor. As soon as you make that appointment with a GP to find out, you should be given all the information. If that is readily available, that is fantastic. From what I am being told from my constituents, it is not readily available and not given. If you go in and ask for an abortion, you are just sent for an abortion. Nobody gives you all of your options and your alternatives.

This might have been historical and maybe it has changed recently but I would like to make sure that people are given the facts and that the information is regularly updated, because the adoption legislation will be presented in March in this house, that will change adoption availability again as part of the Children and Young People (Safety) Act, so it is important that that is a regularly updated piece of information.

The Hon. V.A. CHAPMAN: I have just found the section in the Consent to Medical Treatment and Palliative Care Act 1995, and I think this will cover this, in relation to medical practice generally. It is part 3, section 15:

15—Medical practitioner's duty to explain

A medical practitioner has a duty to explain to a patient (or the patient's representative), so far as may be practicable and reasonable in the circumstances—

(a) the nature, consequences and risks of proposed medical treatment; and

(b) the likely consequences of not undertaking the treatment; and

(c) any alternative treatment or courses of action that might be reasonably considered in the circumstances of the particular case.

I suggest that the clear alternative to a termination is, of course, that the foetus is taken full term and a baby is born. In a matter such as someone presenting to say, 'I have to have a termination because I can't afford to have this baby, I haven't got any money,' clearly an alternative, I would suggest, would be, which would be within this duty of obligation, to say, 'Yes, there is financial support available in those circumstances and you are able to access A, B, C, D.'

This is required to be in its application for the continuation of this act, and that is the current law that makes that provision. It is specific as to what I had always understood are all the risks etc. that go with it, but also paragraph (c) I would suggest provides that.

Mr KNOLL: I rise to support this amendment from the Minister for Child Protection and note her strong interest, advocacy and leadership in this area, and it is something that is to be commended. Having sat around a cabinet table with her and listened to the sincerity that she has on this topic, I am quite proud to have watched what the minister has done and, from what she has pointed out, what she will continue to do.

I think over the course of this debate for many of us our hearts are becoming heavier as we contemplate the very difficult choices and the very difficult decisions that we have to make here, holding in our hands life and death, especially over the debates we had around clause 6 and a number of the scenarios that were mooted.

I understand we are dealing here with the Termination of Pregnancy Bill and I understand that what we are discussing is in what circumstances we believe that to be appropriate, and that is where the debate is focused. But in the back of my mind I cannot help but think that it is not the only pathway, especially when we know that, in terms of health risks to the mother post-viability, birthing a live baby is in many if not most circumstances the safest course of action for the mother.

Anything we can do to make sure that alternative pathways are put forward I am sure would be considered, and I am sure that there would not be too many people out there who would have a one-track mind when faced with these situations.

But I certainly commend it, and if the Attorney is saying that it is already in there I think that moving and passing this amendment will not do anything other than just ensuring that, in relation to the practice which may have been cultural before, we in this parliament make it explicit, that it is something that we, on behalf of the people we represent, need to make sure happens.

For previous bills when we were discussing changes to foster care arrangements and guardianship of the minister arrangements, I canvassed my electorate in relation to those I know who have been adopted and those who would like to adopt, and, on all sides of the debate and with everyone I spoke to, that pathway, as distinct from some of the other pathways, was a preferable option and one that has led to much joy and better life outcomes for people.

It is an amendment that I will wholeheartedly be supporting on the basis that it sends a message from this parliament that we should make sure, as much as we can, that people have every bit of information they need to make a very difficult choice and that in doing this we make that explicit, rather than implicit, for the public more generally.

Ms WORTLEY: My question is to the Attorney. Is the informed consent—

The Hon. V.A. Chapman interjecting:

Ms WORTLEY: On the amendment, yes, but I have a query in relation to what you were saying in response to the member for Adelaide's comments. Is the informed consent verbal or is there anything in writing provided as well?

The Hon. V.A. CHAPMAN: The advice can be verbal. The consent form ultimately has to be in writing if it progresses, but I think you are asking about the advice.

Ms WORTLEY: The advice, yes.

The Hon. V.A. CHAPMAN: There is nothing I can see in the Consent to Medical Treatment and Palliative Care Act that requires the advice to be in writing. Of course, it is not only, 'This is the procedure and these are the risks.' As you can imagine, if you are an asthmatic or you have some other condition, then there would be different advice. Again, that is the medical practitioner's obligation.

Most of us will probably have some connection with some surgery at some stage. I do not think I have ever been to a doctor's or a specialist's—a physician who is about to do a procedure—who has not handed me a pamphlet with something, because it all helps with their potential insurance claim if something goes wrong. You look at it and it has pictures there and so forth. You have that as some sort of backup to what he or she is telling you.

Before you go into that procedure, you have to sign a form that you have received advice—I am just remembering now from the last one I signed. You have to put your full name and address. You are asked about 10 times what your name and date of birth is on your way in, but you have to have signed the form that actually says you have had the advice, you are aware of the risks and you authorise that treatment being progressed.

I think there is a bit of a disclosure somewhere along the line there, that you have disclosed if you have any other preconditions or something of that nature. The forms can be different because they are prescribed by the hospital that is providing the treatment, but all of those have to comply with the law here in relation to the practitioners and sometimes there are hospital obligations as well.

Ms WORTLEY: I ask this question because I know that, through our inquiry into medical mesh, part of the concern has been that, depending on who the medical practitioner is, that will determine the amount of information that you are provided with to make a decision. I am just questioning as to whether or not—I think you have answered clearly that it is not necessary for there to be any written information but that you would rely on the medical practitioner to provide all the information verbally; is that correct?

The Hon. V.A. CHAPMAN: Yes, that is what I am saying. It still can be written, but it is not mandatory to put it in writing. I am saying that, for obvious reasons that relate to the insurance and claims for medical negligence, etc., that it is sometimes very prudent to make it clear what the risks are. That is why when you look at those pamphlets there is a whole list of things that they say could go wrong.

Within that envelope you can get advice as well, if you have a precondition, to say, 'You really are seriously at risk if we put you under anaesthetic because you have a weak heart,' or something else, but you need to have that information. I would think that for a practitioner, anaesthetist or specialist who is about to go into this treatment it would be very prudent to make sure they have a summary of the advice they are giving, and then the acknowledgement in the consent.

If it comes to litigation down the track that there has either been a breach under the Consent to Medical Treatment and Palliative Care Act 1995, or any other legislation, and/or rules in relation to the professional standards to be complied with to retain their practising certificate, you would need to be clear. We now see in the modern world that standard being so high that prudent practitioners make sure that they do it.

Ms STINSON: I just want to thank the member for Adelaide for bringing this amendment. I do understand the member's intention with this amendment, and I appreciate the time she gave me a moment ago to explain to me the specific concerns that her constituents have raised; however, I will not be supporting the amendment. I am concerned that it creates unnecessary duplication, and I thank the Attorney for the additional information that she has provided in regard to what information is provided around informed consent.

Further, the amendment that was passed earlier in relation to counselling I think goes some way to providing an avenue for some of the concerns the member for Adelaide raises and is seeking to address. Specifically, the Attorney has mentioned twice that she would be willing to consider submissions from MPs about what should go in the flyer, the form that might be provided to women who are considering termination. This is obviously the flyer that would be designed to fulfil the obligations under the counselling amendment that we put forward earlier, but I certainly would support the member if she wanted to submit to the Attorney information about adoption.

Although the member for Adelaide and I have come to blows on several issues in the past, I think we are in furious agreement about adoption, and particularly adoption from care, but I can understand what the member is trying to achieve here and I do support her in that. So although I will not be supporting this amendment, I am hopeful that there may be other ways that the objective she seeks—that is, to inform people about other options including adoption—might be achieved through some other means. I am sorry I cannot support this amendment, but I appreciate the intent and what you are trying to achieve with this.

Ms HILDYARD: Thank you to the member for Adelaide, the mover of this amendment. I just have a brief question. I listened carefully to what you put forward in support of your amendment, but I also listened very closely to what the Attorney shared from the Health Care Act. I am just trying to understand what you see is not being provided, in the moving of your amendment, compared to the information the Attorney has furnished us with.

The Hon. R. SANDERSON: I thank the member for Reynell for the question. My understanding from constituents who have come to me is that when they have presented to a doctor saying they wish to have an abortion, they are simply referred directly to have an abortion. They were not given any information, they were not given any alternatives. Whether it was their emotional state—maybe it was explained in words but not given on paper that they could take home and then think about again.

When you are emotional you might not remember all the facts and all the information. Having something in writing that you could take home and discuss with your partner or that you can consider the next day, or before you go in for an operation, I think is quite important. I just looked up the SA Health website and found that, unfortunately, the adoption link says 'page not found error.' I have written to my CEO already to see that we can get that fixed. But there are many, many links.

If you go onto the SA Health website and search under 'abortion', there are about 30 different links. What I was looking for was something that is clear, concise and simple, such as the brochure I was given that was from the ACT government from 2001. I am sure it has been updated, but it made the risks very clear.

You would put there, 'Medical abortion, risks: bleeding to death; should be within 50 kilometres of a hospital,' and the different risks people have presented to me—for example, surgical, the time lines, other options, Centrelink payments that are available to you, adoption, where you can get help, where you can get counselling. It would be just having it in writing and in a very simple format.

I just looked it up, and there are many different links, about 30 or 40. I do not think many people are ever going to really go through that many. If you give them a brochure, it is simple. Give it to them at the first point of call, not when they are going into hospital to have an operation or when they already have a prescription and it is a bit too late, when they already have the tablets and they have made the decision. I think it should be something as early as possible. An informed decision I think is always the best way to go.

I am uncertain at what point the Attorney-General’s information is provided and in what form—whether it is just a series of a million links that are on the SA Health website. If English is your second language, if you are new migrant, if you are in an emotional state where you are not taking in information, it needs to be quite simple. I am just wanting to make it as failsafe as possible for people to make the right decision and have all the facts to do that.

Ms BEDFORD: Could the member for Adelaide explain to me what 'prescribed form' means at the end of her 8A(2), which also appears in the Attorney's 8(3)? Does that not cover written information as well?

The Hon. R. SANDERSON: Yes. That was explained to me as being flexible, so it could be in writing, or it could be online, or it could be a website you are directed to. It could be a QR code that you press, and then you get a brochure format online. It allows that in future, rather than opening the act again and specifying it has to be in writing, as technology changes and things change, it might be a podcast; I do not know. It could be all kinds of things. So 'prescribed form' leaves it in the regulations so it is more flexible without having to come back to the house to make any changes in the future.

The CHAIR: The member for Cheltenham was on his feet earlier. Are you happy? The deputy leader.

Dr CLOSE: Thank you. That western solidarity is holding up. There seem to be two problems, despite the good intention of this series of clauses and this amendment. One is that on one reading it is simply redundant because, as the Attorney has explained, there is already very clear informed consent required; there is full information that will be provided and the alternatives and the possible negative effects. So having it in this bill when it is something that is absolutely part and parcel of how doctors perform their business is redundant, and we do try to the best of our endeavours not to have bills that duplicate others unnecessarily.

On the other level, it is a little confusing, and that worries me even more. A redundancy that has no real harm is to be put up with this late at night on the third in a row, but I am concerned because it is confusing, particularly about the role of a GP. A GP is not performing a termination; a GP is referring. While GPs will provide lots of information and are extremely good at their profession, it is not common, as I understand it, for them to provide the legally sound informed consent; that is the obligation of the OB-GYN who is performing the termination.

I am concerned that if we put this in the already complex life of a GP gets one level more complicated, because they are having a legal obligation put onto them that is not currently the case, because they are not performing the termination. What they are doing is providing a referral. As I say, as I understand it, often GPs will provide that information. It may be that the Attorney, with the advice of her expert, can give some insight into whether this is the case, but I see a very real concern that this might make things more unworkable, which appears to be what we have spent much of this evening doing. Therefore, I indicate that I would not like to vote for this.

I have another problem with it, although it is not explicit enough to rule it out for support. Because the minister has referred to an adoption bill coming in, it seems to me that perhaps the reason that this possibly redundant provision is being suggested is a desire to make adoption more appealing than it may be currently, to change the balance of current considerations.

That may not be the intent, and we will see what the adoption bill says, but I am not quite sure why else there would be this apparent redundancy that may also in fact provide an additional level of complexity for the different doctors involved in the process of going through to a termination. I am not sure if there is anything the Attorney would like to say.

The CHAIR: It is the member for Adelaide's amendment, so she can have the first opportunity, if she wishes.

The Hon. R. SANDERSON: I thank the member for Port Adelaide for raising these concerns. My amendment provides:

(1) A registered health practitioner must—

(a) when providing advice to a person about the performance of a termination…

So, if they are not providing any advice and they are saying, 'I can't help you with that, you need to go to the Pregnancy Advisory Centre,' or whatever, then they are not really providing advice. I do not see the harm in having brochures in the rooms of a doctor's surgery. There are so many brochures on diabetes, asthma—there are lots and lots of brochures and information.

It is really representations that have been put to me from women who have had an abortion who felt that they were not given adequate information. I do not know why; maybe they were and maybe they were emotional and did not hear it, but they do not recall being given information. They do not believe that they were given enough information to make an informed decision. That is why I am putting this amendment forward.

I know that the member for Torrens also raised the issues with mesh implants. Those doctors were also under the same obligation, yet how did this happen? How did so many women have silicone implants that were faulty and had to be removed? Why did those doctors not inform them as well? Just because a doctor has an obligation does not mean it is failsafe.

If there is a brochure or information that is produced by the state government, you would hope that it would always be updated and upgraded for new technologies and changes and that it would be readily available and trustworthy. That is what we want: trustworthy, failsafe information so that women making one of the most important decisions of their life are in possession of all the facts and that they are current and up to date at the time. That is the intent.

If it is already covered that is fantastic; that is fine, but as we have heard from the member for Torrens, there are other instances where that obligation of a doctor to give you full information is not failsafe and has failed previously.

The Hon. V.A. CHAPMAN: Other members have raised some technical weaknesses in relation to the application of the provision, but I just want to reassure the member that in relation to identifying the risks of the procedure—again, I think it is important to separate this—there is adequate provision under the legislation, and that is really detailing the procedure and the actual risks of the procedure. That is covered.

The secondary issue relates to someone who might say, 'I wasn't really sure when I was given this information that I had anything else to assist me to know what my other alternatives might be.' I think that is covered by paragraph (c). Because the amendment here is proposed by way of progressing once a piece of written information is in prescribed form, one option is that we have a look at identifying what might be a helpful document, especially as there is the early document of the ACT that the member has mentioned. I had a quick look at it when we had a discussion about this.

If there is some contemporary material that we might be able to pull together that identifies other alternatives that might be considered, that may be the way to look at this: to actually not proceed with an amendment but that some work be done in perhaps identifying what is available already. That will really be a matter to work on with the health minister, I suspect. I am happy to ask him, but of course the member may directly approach with any ideas that she has in that regard.

Let's have a look at what we are talking about here, because when it comes to the procedure and the risks of the procedure I am reminded by the health professional here that this is not something that you can just put in a pamphlet. It is an exercise that requires a two-way conversation. It is an exercise that means that the medical practitioner has to, for example, identify all preconditions and identify some history—had there been any termination before? Had there been any problems with other issues? That is a two-way street. Information is provided, and observations are presumably recorded and tests done from which the practitioner can then give further information. So I think that is covered, but it is also not something that we can just put into a pamphlet.

I think the key issue here is what information might be available that could be compiled and easily retrieved for the purpose of giving advice on an alternative to a termination. I think there is some work to be done there. I am happy to have a look at that or to assist the member to discuss with the members of the health department as to what might be available there. I think that is where the key problem is in relation to a case that the member for Adelaide had raised with me regarding a concern about a subsequent regret in having termination some years before. I am happy to keep working with the member for Adelaide on that.

I appreciate the other members' respectful contribution to this. I know the member for Adelaide very well, obviously, and I do know how passionate she is about considering options, not just within the termination framework but in relation to providing children with a loving family and home, especially ones who have suffered the vulnerability of their biological circumstances. I think we need to go away and work on it, and I am happy to do that, rather than try to progress something that may not actually add anything at this point and for which we would need to work out what would go in the prescribed form.

Mr SZAKACS: Member for Adelaide, I have a question regarding the interoperability between clause 16 of the Consent to Medical Treatment and Palliative Care Act and this new clause. There is no doubt that this new clause will create a new standard for the provision of information and advice in regard to medical treatment insofar as a termination is concerned. This does not take away from the positive obligations upon a medical practitioner in discharging their duties under clause 16 of the aforesaid consent to medical treatment act.

What I am interested in, from a couple of different angles, is, firstly, whether now the positive discharge of obligations imposed upon a medical practitioner under the medical treatment act will only be considered to be discharged if that advice is provided in the prescribed form, or whether the additional obligations that the medical treatment act currently provides for will still need to be discharged.

The Hon. R. SANDERSON: I thank the member for his question. I have a copy of that act here. Of course, I trust parliamentary counsel to have considered other acts—that is their role when they do the drafting—however, I do not believe that there would be a contravention. When it was originally drafted there was a financial penalty, and I said that was not my intent. My intent is that women or people should be given the relevant information that is up to date so they could make their own decision. There is not a financial penalty for not doing it, so I do not see any reason why the Consent to Medical Treatment and Palliative Care Act would conflict with this amendment.

Mr SZAKACS: There is an obvious conflicting clause, and that is that advice under your amendment can only be discharged if it is in a prescribed form, whereas of course there is no prescription under the—

Mr Knoll interjecting:

Mr SZAKACS: Should I ask you, Stephan? Do you want to come down here? You can answer the question if you want. Just move the amendments in your own name next time, or let me continue asking the member for Adelaide.

The CHAIR: Member for Cheltenham, just continue on with your question.

Mr Knoll: Play the ball not the man, mate.

The CHAIR: Member for Schubert, order!

Mr SZAKACS: You think I am playing the man? Let's get started playing the man. Let's go for it.

The CHAIR: Order! Member for Cheltenham, back to the question.

Mr SZAKACS: I am trying. The obvious difference is the prescribed form. Under the consent to medical treatment act, there is no prescription. The advice or the information can be provided as the Attorney has advised in her answer, and almost entirely it is done through conversation. Your amendment is that it has to be done in a prescribed form to discharge the duty. I am interested particularly in that clause. Do the obligations insofar as a termination per the medical treatment act now need to be in a prescribed form, or is that going to be a matter where this debate will be looked back on for some guidance if there is litigation because there is an inconsistency?

The Hon. R. SANDERSON: I thank the member for his question. My understanding is that the reason for using the term 'prescribed form' was to leave it open. If verbal is a prescribed form, then it would cover this and it would be the same. My preference would be that writing would be available, a written brochure or something online. I would prefer written because, from the women who have made representations to me, perhaps they were told at their initial consultation but they have no recollection because they were in an emotional state. They do not remember all the words, and they feel they were not given adequate information.

Whether that is the reality or not the reality, that is their recollection and their lived experience. So by having it in a prescribed form, my preference would be that it would be in writing and it would be a brochure that is produced by SA Health. It would be available at GPs and online, as well as a brochure that you could download and print yourself. In an emotional state while being given a verbal description of what could go wrong, I think there is no way you would be able to remember that unless you took a notepad and a pen and wrote down all your notes. I think it is much better to have that in writing.

Mr SZAKACS: One final point of clarification, member for Adelaide. You referred earlier on to a referral from a GP potentially to the PAC. Can I ask you specifically whether in your view that is advice insofar as your amendment is concerned, and secondly whether your answer, whether it is advice or not advice, is informed by advice that you have sought from SA Health, Crown or parliamentary counsel?

The Hon. R. SANDERSON: My advice was from parliamentary counsel and certainly from the lived experience of the women who have written, many of the people who filled in my survey and also those who have come and met with me. Whether you determine it advice, I do not believe that every single woman who goes to a GP would be referred off to the Pregnancy Advisory Centre. I do not know. They would be pretty busy if that is the case. I think there is one in Woodville.

I do not know if people go straight from a GP and then they are booked into a hospital. That is what has been represented to me as the procedure. It is simply that there are women who want more information who feel aggrieved that they were not given that information. I am wanting to make that available. I am putting it before the house. I am happy to have it voted on. You can vote either way, but that is the intent. There is nothing underhanded here. It is about giving people full information to make an informed decision.

Dr CLOSE: I truly do not mean to be pedantic. What I am concerned about—and I believe this was where the question from the member for Cheltenham came from—is the concern that has been raised with me by GPs who want to know if they might be sued if this goes through. That is why the question is about the definition of advice.

When a GP has a woman come in and say that she would like a termination, they have a conversation and a referral is given. Is that legally 'advice' under this, and therefore should, at a later date, the woman regret having had a termination, although she will also have received fully informed consent from the person performing the termination, could she come back and sue the GP because she did not have the consent that is required by this piece of legislation?

It is important. In a court case, Hansard is looked at to see what the intent of the bill was. It is not the complete story, but it is important to understand whether parliamentary counsel has given advice to you, as a crafter of this, to say we are not referring simply to a doctor giving a referral, or we are referring to a doctor giving a referral. That would be useful.

The Hon. R. SANDERSON: I thank the member for her question. For anyone who is reading Hansard in years to come, the intent of this is all about information; it is not about suing doctors. It is about having informed consent—literally informed consent, with physical information. If, in the instance that you gave, the person has been given the information before they have had the surgery, then they have received it. I am not saying every single person they ever saw had to give them the information or they could sue the one who forgot. They need to have had this information before they make a decision, and as early as possible is the preference.

My preference would be that it would be in the doctor's surgery along with the information on diabetes, heart attacks and asthma, and all the prevention things that you could do. The idea would be it is a piece of information that is readily available, it is online in a downloadable, nice brochure that you can easily read, and it is possibly in a multitude of languages so that people with English as a second language can understand it.

My concern is that the women who have come to me do not believe they were given that information at any point, and people who are in an emotional state making a very difficult decision do not seem to remember a verbal briefing on all the things that could go wrong. I think it is important to have it available in writing. Whether it is an online document that you download yourself or whether it is a brochure, I think it is important to have that information available.

Ms LUETHEN: I am mainly rising to make a comment about this in terms of acknowledging the member for Adelaide's feedback that she has had from her community, because certainly leading up to and during the safe access zones debate that we had in here, when I was listening to my local community, and certainly in terms of listening to concerns, worries or reservations that people have about this bill, several representations have been made to me by women who might regret their decision or who feel like they were pressured into the decision by someone.

It is my experience, based on the feedback I have heard from my community, that there are women who wish they had had more counselling or more information or more time to think through all their choices. I am grateful to the Attorney-General and others for pointing out why this particular amendment might not work, and I would like to be involved in the future if there is an opportunity to look at the information that we are providing to people so they can certainly make the best choice.

The committee divided on the new clause:

Ayes 17

Noes 29

Majority 12

AYES
Bedford, F.E. Brock, G.G. Cregan, D.
Duluk, S. Ellis, F.J. Knoll, S.K. (teller)
Koutsantonis, A. Mullighan, S.C. Murray, S.
Patterson, S.J.R. Pederick, A.S. Piccolo, A.
Sanderson, R. Speirs, D.J. Tarzia, V.A.
van Holst Pellekaan, D.C. Wingard, C.L.
NOES
Basham, D.K.B. Bell, T.S. Bettison, Z.L.
Bignell, L.W.K. Boyer, B.I. Brown, M.E.
Chapman, V.A. Close, S.E. (teller) Cook, N.F.
Cowdrey, M.J. Gardner, J.A.W. Gee, J.P.
Harvey, R.M. Hildyard, K.A. Hughes, E.J.
Luethen, P. Malinauskas, P. Marshall, S.S.
McBride, N. Michaels, A. Odenwalder, L.K.
Picton, C.J. Pisoni, D.G. Power, C.
Stinson, J.M. Szakacs, J.K. Teague, J.B.
Whetstone, T.J. Wortley, D.

The Hon. R. Sanderson's new clause thus negatived.

The CHAIR: Can I remind again the people in the public gallery that they must remain seated. You are very welcome here, but you must remain seated. I expect the interest is in who is voting on what side, but I can assure the people in the public gallery that these votes will be publicly available. That is why divisions are called. So please remain seated.

Clause 9 passed.

Clause 10.

The Hon. D.J. SPEIRS: I move:

Amendment No 5 [Speirs–1]—

Page 6, lines 5 to 19—Delete clause 10 and substitute:

10—Unlawful termination of pregnancy

A person who performs or assists in a termination knowing or having reason to suspect that to do so is not authorised by this Act commits an offence.

Maximum penalty: $20,000 or 7 years imprisonment.

This amendment will see the deletion of clause 10 of the bill and the substitution with what I believe to be a more straightforward clause. I guess you could describe it as a catch-all penalty clause that seeks to enforce a penalty on people who perform or assist in the termination, knowing or having reason to suspect that to do so is not authorised by this act. That would then create an offence which, as members would see, would involve a maximum penalty of $20,000 or seven years' imprisonment. I established those penalties on the advice of parliamentary counsel.

It is my firm view that we should have a more straightforward determination of the penalties, as outlined in the bill at clause 10. I think we should be looking to enforce penalties against anyone, not just unqualified persons but also people who would be deemed qualified in the performance of terminations, because they, too, can make errors intentionally or not intentionally, which would result in a termination occurring against the aims of this act. I move the amendment in my name and seek its support.

The Hon. V.A. CHAPMAN: I have taken advice on this matter because, as members know, the bill before us is one which actually is proposed to move from a criminal model to a health model. That is not to say that in this new standalone termination law that is proposed we do not have offences. There are two offences that are very important in this bill. One is against someone who is not medically qualified who purports to undertake or assist in a termination. That is prohibited. That is to make it very clear that we are moving to a medical model and medical professionals have to do it. That is critical.

The second offence is in relation to protecting against any coercion or duress for someone who is making a decision about a termination—either to make them have a baby or not to have a baby, as two of the options. The person in that circumstance may well be vulnerable. In fact, the member for Adelaide has raised in a previous discussion in this debate a situation where someone has felt under duress even by not having sufficient information as to what options they might have when they come to seek this procedure.

Yes, there is a place in the current bill proposed for offences, but in moving from the criminal model to a medical model, the principled position in that is that we are moving away from punishing an offence by either a person who performs the termination or assists, or the expectant mother themselves actually accepting a procedure or attempting to procure the abortion on herself. We actually have criminal offences for these things and the like that might assist, and we are actually moving away from that and saying to the health profession, 'This is the prescription within which we expect you to carry out this procedure and, in the circumstances, the extra levels of obligation that might apply in respect of this particular procedure.'

For this amendment to be accepted, I think we would actually be undermining the whole purpose of this legislation. We might as well stay in the Criminal Law Consolidation Act if we are going to have this approach. That said, if a person who is a medical practitioner were to terminate, knowingly in breach, apart from meeting the AHPRA option that is being considered, the aspect of this particular proposal I would be concerned about is that this is supposed to punish someone, as a profession, even if they have reason to suspect—whatever that means in a legal sense—that they are not authorised to carry out that procedure and therefore they have committed an offence.

I think I understand what the Minister for Environment is trying to achieve here. He wants a level of criminality to remain. The only other information I can add to that is to advise that medical practitioners and registered health practitioners who fail to comply with certain requirements and/or conditions of their clinical registration may be subject to a range of registration-based offences as set out in the Health Practitioner Regulation National Law (South Australia) Act 2010.

Under the national law, practitioners may be subject to professional sanctions such as censure, loss of registration, financial penalties and, in some circumstances, even imprisonment. These offences are regulated by the Australian Health Practitioner Regulation Authority (AHPRA) referred to earlier. Practitioners may also be reported for malpractice and other conduct-based offences associated with disciplinary proceedings, such as restricting or revoking a practitioner's registration.

This position is already reflected in clause 13 of the bill, which provides that in considering a matter related to a registered health practitioner's professional conduct or performance, regard may be had as to whether the practitioner terminates or assists in the termination of a pregnancy contrary to the act. For the purposes of clause 13 of the bill, a relevant matter may include a notification made under the Health Practitioner Regulation National Law (South Australia) Act 2010 or a complaint made under the Health and Community Services Complaints Act 2004.

In circumstances where a medical practitioner or registered health practitioner fails to obtain the informed consent of a patient prior to a termination, the practitioner may be criminally liable, as their conduct may constitute an assault. There may also be circumstances where the conduct of a medical practitioner or registered health practitioner constitutes a criminal offence; for example, the failure to obtain the informed consent of a patient prior to the termination may be an assault. Those are those two circumstances. It is therefore unnecessary to create a specific offence for all persons who unlawfully perform or assist in the termination of a pregnancy.

I hope that assists the member to draw attention to other sanctions, and that is all part of the process of where we are moving from a criminal sanction model to a health model. With that, I indicate that on the advice I have received this provision will be opposed. I suggest that having it, at least in its current form, even with having reason to suspect would be very problematic in its application.

The Hon. D.J. SPEIRS: I appreciate some of the Attorney-General's contribution there. I have made it very clear in this house that I am fundamentally in favour of decriminalisation of abortion for the woman, but I am not in favour of walking away or somehow precluding people in the medical profession who do the wrong thing by this act from seeing them as guilty of criminal activity and being subject to sanctions under this act.

A woman who seeks an abortion and has a termination of pregnancy should absolutely not face any criminal sanction, and we know that has not happened for some 50 years or more. However, in my view, for a health practitioner who undertakes something that is contrary to this act the protection should be in place to sanction that person. The Attorney-General correctly outlines a range of practitioner guidelines and sanctions that could and might be available under the various codes that medical practitioners conduct their work under.

However, again, and as with many of the items we have discussed in this legislation, there is an opportunity to create a sense of completeness and prescription in this legislation, and that is what my amendment seeks to do.

Mr KNOLL: I agree with the member for Black's comments here in relation to the fact that this is a medical model that decriminalises women seeking an abortion. I think that is the thing this chamber has come to grips with many times over the course of this debate and that we are all in favour of—or mostly all in favour of. However, to suggest that this amendment would move away from a medical model is, to my mind, slightly disingenuous, given that there are penalties in here, under this clause 10, for people who are not qualified who perform abortions.

I struggle to understand the parallel that if you are unqualified you can be subject to a maximum penalty of seven years' imprisonment, where arguably you can suggest you have less knowledge or understanding, or ability to understand, that you are committing an offence, whereas if you are medical practitioner who is trained, who is likely or potentially a specialist in this field and who will, over the course of conducting their duties, understand completely and fully their obligations, they would not be subject to the same criminal penalty.

To me that is quite incongruous and, to my mind, a failing in the bill. If, as the Attorney states, this is a medical model, why is clause 10 there in the first place?

The Hon. A. KOUTSANTONIS: I was going to make almost exactly the same point as the member for Schubert.

An honourable member interjecting:

The CHAIR: Continue, member for West Torrens.

The Hon. A. KOUTSANTONIS: Thank for your protection, Mr Chair.

The CHAIR: Sometimes you need it.

The Hon. A. KOUTSANTONIS: This cooperation is going to their heads. It will revert back to form very, very quickly.

The CHAIR: Let's wait and see, member for West Torrens.

The Hon. A. KOUTSANTONIS: I will have you hanging by trees. I am interested in the Attorney's point about decriminalisation because, from what I can tell, there is no clause in the new bill that says abortion is now decriminalised. The function of moving it out of the Criminal Law Consolidation Act is a decriminalisation aspect, so I am not sure how inserting a clause that has reference to a penalty is recriminalisation of abortion.

I think the point the member for Black is making is that if you can have someone who is not authorised who performs an abortion receive a penalty, if an abortion that is not authorised by the act is performed by a qualified person, what is the penalty? I think the Attorney said that where there are professional standards and disciplinary procedures in place that would take care of that, but I do not know if there are any legal penalties in place for people who do that.

If a healthcare professional or a medical practitioner, or whatever the appropriate term is, who is qualified to do so conducts a procedure that they are not authorised to do under legislation, is the only penalty now professional standards? Are there no more sanctions in place in statute in South Australia?

The Hon. V.A. CHAPMAN: I am happy to answer that question. There are currently criminal offences up to life imprisonment for a woman who tries to abort herself, usually taking a toxin. There are separate offences up to life imprisonment for someone who procures an abortion currently past 28 weeks of pregnancy. They are criminal offences; they are in the Criminal Law Consolidation Act.

This bill is repealing that, and we are setting up standalone legislation which says, under these rules, terms and conditions, doctors and health professionals do it. We have an offence in that relating to non-medical people doing it to make sure that we reinforce that the new model is that only trained medical people and health professionals do it. That is the reason that is there.

We also recognise that, because the expectant mother may be in a vulnerable position in this whole exercise, she should not be under any duress, and therefore we have that protection for her. We have moved the criminal sanctions from the person who is being aborted and for the professional who is doing it and we put it into this new model. That is the first thing.

The second aspect is that we maintain the professional standards, and the agencies that I have referred to, AHPRA and the like, to administer the repercussions if the medical people do not do the right thing. I have also pointed out circumstances where, if they do not do some of those things, like obtain proper consent, then they may be subject to assault charges and other things anyway, but in any event AHPRA has power to, as I have pointed out, dismiss, suspend, discipline, obviously fine and, in some circumstances, imprison. That is the model we are moving to.

Somebody asked me about this recently: are there other circumstances where a medical procedure occurs that is prescriptive? The one I am familiar with is the provisions under the Mental Health Act which require electroconvulsive therapy (shock treatment as it is known in psychiatric treatment) to be done in a fairly prescriptive way. I cannot remember the full detail; I think it has to be two psychiatrists to examine the patients, conduct the assessment for the purposes of that, and certain processes are to be done. There is also a prohibition in that act I remember, which is still there, which says that there is to be no provision of surgery for mental health treatment of a patient.

Some of us are old enough to remember the procedures that used to take place in this area, such as lobotomies, which is a surgical intervention as abhorrent as it sounds, so we have a prohibition on that. We do not have criminal sanctions that go with the failure in relation to the health professionals in relation to these. We still retain a criminal code in relation to assaults, so for example, again, even if someone attempted to do surgical treatment on a mental health patient, I am sure there would be all sorts of references to whether there was an assault against somebody in that circumstance, especially if they did not have their signed consent.

Those protections are there are in a different way. I think what the member for Black is attempting to do is to say that he still wants there to be some consequence for a health professional, if they do not follow the rules themselves, by way of a penalty of up to $20,000 or seven years' imprisonment. I am suggesting that that is inconsistent with the model that we are developing and it is inconsistent even in other processes where there is an obligation on other specialties.

The second aspect I raise about it is this question of a person who is up for consideration for some prosecution on this has to have knowingly breached an obligation under the act or one of the conditions, or having reason to suspect. I have just never heard of that in a circumstance where the person who is breaching it even suspected that they might be in breach of the provision. It seems to be subjective, that is, the person themselves will be assessed about what they might or might not have suspected. I do not even know how you would prove that, frankly. I raise that because it seems to be a practical problem in its application, but the principal position is that we are moving to a health model scheme.

I think there are members in the parliament, because I have listened to the contributions they have made, who still take the view that the prescription being set into this legislation, which is largely in clause 6 and to some degree supplemented by a guide, I suppose, in clause 6A, is beyond what is acceptable. They do not consider that some of that should be available for an expectant mother, and that is their firmly held view. Whilst I do not agree with it, I respect that it is a firmly held view. I do not think this will help them to remedy that. That is also my point here.

I think there will be a difference of opinion on that, and I accept that it is firmly held, but this will not help relieve that. I do not see this as the answer, just to simply say, 'We are doing it for unauthorised people like non-doctors; therefore, why aren't we doing it for doctors?' To me, that is not a logical extension.

The Hon. A. KOUTSANTONIS: I notice in the New South Wales act, in section 10(3), it provides:

This Act does not limit any duty a registered health practitioner has to comply with professional standards or guidelines that apply to health practitioners.

That same provision is in the bill before us in part 3—Miscellaneous, clause 13. The question I want to get to is: is there any act in Australia governing abortions that has penalties in place for qualified medical practitioners who perform abortions that are not authorised by the act or do they all uniformly have the same duty, that the 'act does not limit any duty a registered health practitioner has to comply with professional standards or guidelines that apply to health practitioners', keeping in mind our little discretion earlier today?

The Hon. V.A. CHAPMAN: The advice I have received is no. They all sign up to the national law obligations, and that is something we do here apparently in relation to the management of the conduct of health professionals. While if there is any further information we can get it, I am advised that AHPRA can impose a fine of up to $30,000 for unsatisfactory conduct, unprofessional conduct and professional misconduct. That is just to add to what I said earlier.

In clause 10 of our bill, non-professionals have penalties, and in Queensland and New South Wales they have that as well. I am obviously wanting that to continue because I think it is important that we maintain that.

The Hon. A. KOUTSANTONIS: Do any of the other acts in other jurisdictions have a financial penalty specified in the act, or do they all just refer to the national standards?

The Hon. V.A. CHAPMAN: They do not, except that in New South Wales and Queensland they have seven-year and five-year imprisonments for unqualified persons as per the proposal in this bill.

Mr MALINAUSKAS: Just a couple of important principles lead me to a question for the Attorney. First, I accept the wisdom that there should be a distinction between a penalty applied to a non-qualified person versus a qualified person. I think that is a legitimate distinction to make given that if an unqualified person attempted to engage in such a procedure they would inevitably cause harm, so I appreciate that distinction. I also appreciate the underpinnings of the Attorney's position that we are decriminalising something, why would we put something back that is consistent with a piece of criminal law?

My question for the Attorney is in regard to AHPRA. Notwithstanding my limited knowledge of the way AHPRA operates, that it is a completely arduous process and lends itself to being hardly timely—although that is probably equally true of the criminal justice system—if someone does the wrong thing under the law and AHPRA has the ability to terminate, suspend and so forth, given that in those circumstances there is an allegation against a doctor for not adhering or doing the right thing according to law, given that it is in law, how does that relate to how AHPRA would ordinarily conduct a judgement that was consistent with these guidelines?

Another way of asking that is, given that AHPRA would be asked to make a judgement about something that is governed by state law, does the fact that it is state law elevate the seriousness in which AHPRA would make a judgement around the conduct of that medical professional?

The Hon. V.A. CHAPMAN: I think I understand the question. The member might recall, and I am not sure, you may not have been in the parliament at the time, but under Minister Hill's time—and I look at you; you were probably the architect of it—we entered into a whole lot of schemes for national management of professional standards for different medical specialties, and I remember very interesting debates on that.

In any event, essentially what we did was to try to sort of harmonise this national scheme. We all signed up. We kept some exceptions back, and I often think of this because we kept an exception on optical. We have a special exemption in South Australia which requires that if you want to have cat's eye or any of those other types of lenses that often young people use, you have to get a prescription. So we actually retained the right to have some exceptions, we say, to set up some high standards.

Nevertheless, generally the national rules apply and there is consistency and all the arguments were put as to how that would work. My recollection in doing that is that the state disciplinary boards for the agencies still maintained a role in carrying out that. I am advised that the Australian Health Practitioner Regulation Agency (AHPRA) sets all the process there. Yes, we have boards for each of the disciplines back here in South Australia, but the body that sets the rules and actually assesses the consequences for a breach I understand is AHPRA.

Mr MALINAUSKAS: I appreciate that my question probably was not well articulated, but that is what I am trying to get a sense of. In this case, we have the law of the state that will govern the circumstances under which a termination should or should not occur. Given AHPRA ordinarily conducts examinations versus their own guidelines, inconsistent with their own procedures and processes, how does that relate? I am trying to get a sense from the Attorney.

Maybe if I put it more plainly. The necessity for this amendment from the Minister for Environment, in at least my mind, would be diminished if AHPRA gave due credence to the fact that they were not only making a judgement consistent with their guidelines but indeed making a judgement against the law that had been passed by the parliament.

The Hon. V.A. CHAPMAN: I understand that, yes. The answer to that in short is, yes, that is precisely what they do. We have a situation where our own DPP would have to be involved if it is a prosecution as a criminal offence in relation to AHPRA. If they are going to go across to state law, there is a breach anyway—for example, a doctor fails to obtain informed consent, they may breach the AHPRA rules but they also might be prosecuted under state criminal law still for assault.

Mr MALINAUSKAS: Let's just keep the example—

The Hon. V.A. CHAPMAN: Sorry, if I could just perhaps finish there, AHPRA cannot assume responsibility in relation to state criminal law. They are not an arbiter of that at all; they are an arbiter of the obligations in relation to the standards imposed. This statute is setting up a model which they are to operate in South Australia: you need two doctors, the time frames, all those things. If there is a breach of that in relation to the implementation of the discipline—that is, not punishment but the actual specialty—then AHPRA comes in to apply that. So, yes and yes, if I can clarify that.

Ms MICHAELS: Can I seek clarification from the Attorney on the answer to the member for West Torrens on other states and any penalties, in particular WA, which I understand has a penalty of $50,000.

The Hon. V.A. CHAPMAN: I will just ask my adviser because she says no. Could you clarify the reference?

Ms MICHAELS: This is section 199 of the—

The Hon. V.A. Chapman interjecting:

Ms MICHAELS: It is an offence of Abortion, it is titled. Section 199 in the WA criminal code states:

(1) It is unlawful to perform an abortion unless—

(a) the abortion is performed by a medical practitioner in good faith and with reasonable care and skill; and

(b) the performance of the abortion is justified under section 334 of the Health (Miscellaneous Provisions) Act 1911.

A penalty of $50,000 applies.

The Hon. V.A. CHAPMAN: I think you said it is under the Criminal Code, which is equivalent to our Criminal Law Consolidation Act.

Ms MICHAELS: Correct. There was a question from the member for West Torrens about any other penalties in any other states for a medical practitioner. This does impose a penalty if the medical practitioner does not perform the abortion in accordance with their health care act.

The Hon. V.A. CHAPMAN: It is because Western Australia has not decriminalised. Of all the states that have actually gone to the medical model, none of them have incorporated a criminal offence in the medical model. Western Australia is still the same as we are here—with the criminal model.

Ms MICHAELS: I understood the member for West Torrens was asking whether there were any penalties in any other state for medical practitioners who did not perform abortions in accordance with relevant regulations and healthcare acts.

The Hon. V.A. CHAPMAN: Let me be clear: on my understanding of what he said and asked—and if I have misunderstood, I am sorry—all the states that have moved to this model are not employing a criminal sanction in this model anywhere in Australia. Western Australia is still like us, with a criminal model. You have just quoted from the Western Australian criminal code, which is the equivalent of our Criminal Law Consolidation Act. They are in exactly the same structure that we are. I cannot remember when they established theirs, but they are in exactly the same structure.

Dr CLOSE: The principle concerns me because, as you have pointed out, if we move from a criminalisation model to a medical model—no other state has taken penalties, particularly with the possibility of imprisonment—we would be the only one to move to a medical model but drag with us criminalisation. So that is clear. For that reason, I oppose this.

I am concerned, particularly in light of the amendment that was passed earlier this evening—which became clause 6A, which lists various considerations—that the weight of that was debated in debates. Is it just taking guidelines into the legislation, but it is not exhaustive even though it is mandatory? I suspect there will be legal opinion that will try to sort out some clarity around what our act, should it become one, actually requires of doctors. Given that that is there in particular, that makes me very concerned about a requirement to not have reason to suspect that you have not acted.

So you have this mandatory list, and you must not have any reason to suspect that you are not complying with the law. What this adds up to for me is a serious risk of reducing access because many doctors will say, 'I can't. This is now too risky,' and I invite the Attorney to say whether she shares that view, or whether I am tired and overconcerned.

The Hon. V.A. CHAPMAN: We are probably all tired, but can I say that, in my personal view, I do not think clause 6A will have much work to do. Whether it actually becomes a feature of greater risk for doctors because, although it has 'mandatory considerations', it simply says there has to be some regard given to these factors. In any one case that they are looking at for a prospective termination, most of them will not apply. Nevertheless, I do not think it will actually be of much use. It is an inconvenience, and we have heard all the professions' views on that. It could be even more confusing for a doctor trying to diligently go through the list and think, 'Am I doing this and that' and all that exercise. I do not want to reflect on the vote in relation to that; I just personally do not think it is going to have much work to do.

If doctors are wanting to make sure that they have complied with the act, they will have read the list and thought, 'Okay, none of those apply to the circumstance I am looking at,' and they may have gone anyway to their Late Abortion document and thought, 'I better just check and see what our professional body says about that,' and 'Actually, that doesn't really apply to me, so it's not going to be much help in making the assessment that I have to deal with.'

On the other hand, it might be quite useful. I am simply making the adding of that into that legislation in the way it has been drafted but, as I say, I am not sure it will be much use. In any event, that is probably why I do not think it is going to be much comfort for those who think it is going to in some way narrow or impede the provisions of clause 6.

Therefore, I suppose an extension of that is whether there is any likelihood that doctors might be inadvertently caught in that, especially in the way this is drafted, and having reason to suspect that they might be punished. I would not say that I would be that worried about that aspect of it from the point of view of introducing this. There are other reasons why I would object to it.

What is concerning from what you have said is whether in fact something like this might actually persuade somebody who is competent and capable of undertaking this procedure to go and do something else in the health world and not avail themselves of doing that and not provide that service. That would concern me, because this is not a pretty subject. It is not the easiest thing. I am sure lots of health procedures are not easy, but they are not shrouded with the same level of even potential social stigma still.

I think the professionals who work in this area and provide this service are obviously highly skilled but I also think they are very brave in the sense that they can sometimes be ridiculed and treated in a manner which I think is really sad. Anything that might dissuade them from going on to provide this service I think would be very, very disappointing, but I do not think this piece of legislation will be the trigger that is the concern that has been otherwise expressed.

The Hon. A. KOUTSANTONIS: If I can just ask the Attorney-General, just for my own comfort, and I am sorry for labouring on this point: what is the penalty for a doctor who performs an abortion for the purpose of sex selection as the bill currently stands amended?

The Hon. V.A. CHAPMAN: I am advised that if a medical practitioner in those circumstances proceeded with a sex selection termination contrary to the prohibition, that would be a sanction that AHPRA would determine as to unsatisfactory conduct, unprofessional conduct or professional misconduct. It can impose a fine of up to $30,000 and there are obviously all of the other disciplinary processes it can take, which are either to go to the health complaints authority and police, of course, if it is actually an assault or something of another nature; secondly, to receive undertakings; third, conditions on practice; fourth, a caution; fifth, supervision; sixth, reprimand; and of course cancellation of registration.

The Hon. A. KOUTSANTONIS: Again, I am sorry for labouring this: they sound more like civil penalties without any criminal sanction, other than you mentioned a referral to police.

The Hon. V.A. CHAPMAN: Where in fact the misconduct results in an assault or something of that nature would be, obviously, why that is in the list. The member said, 'sound like civil penalties'. Western Australia is still to consider this, but we, along with the rest of the states, with this bill are moving to a medical model. So whether you want to describe them as civil penalties, it is now a professional misconduct issue, if there is a breach in relation to a procedure, just as with any other procedure of a medical practitioner.

As I say, there are some who take the view that although they are saying to me, 'I want there to be decriminalisation; we agree with that,' they still want criminal sanctions on these people if they do not do the right thing in terms of professional standards. Yet they are not asking for that in other areas of professional misconduct. It may be a validly held view. I think the member for Black obviously thinks there should be a criminal sanction in this bill, in this health model. I do not agree with that. Other states anywhere in Australia that have adopted the health model have not agreed with it.

I think there is a level of nervousness when we do move from a criminal sanction, which we have had for 50 years, to a health model. Of course, we want to underwrite that with protections and understand that there is a process there for someone to be dealt with if they do not do the right thing in a professional way. That is part of the idea of moving away from having a threat of a criminal sanction over doctors and nurses who have had this position.

In fact, I think one of the speakers suggested that there has not ever been a prosecution in relation to this, but there has been, and you can look at the report from SALRI. That does not mean it is common, but I make the point we are moving from a criminal section with this proposed bill to a health model sanction, and nowhere else in Australia have the states that have done that applied a criminal sanction.

I know it is hard for some members to accept that. I think the most dangerous would be if we moved from a criminal sanction to nothing, and that is why I am embracing what I think is an important process here that we do not just let this be at large. This is a serious medical procedure and it needs to have proper medically trained people to deal with it and areas of specialty that sit around it.

They have to be lined up like they do in any other professional capacity of medical treatment and surgical intervention with the standards that have been set at the professional level and professional misconduct. The disciplinary consequences that come with that are there across the board in relation to professions, and not just the medical profession; obviously there are layers of this for lawyers and other professions.

But here we are talking about vesting this responsibility with trained medical and health professionals and they have that level, as I was explaining to the Leader of the Opposition, through the AHPRA process for the compliance mechanisms for those professional standards. That is the model we are moving to and if that makes people feel a little bit uncomfortable—as I say I think clearly the member for Black feels that there has to be some punishment still for doctors who do not comply or even think they might not comply with some provision under this. I do not know of any other procedure that attracts that either, where you have a health professional standing, but there may be, but I am not aware of any.

The committee divided on the amendment:

Ayes 20

Noes 26

Majority 6

AYES
Brock, G.G. Brown, M.E. Cowdrey, M.J.
Cregan, D. Duluk, S. Ellis, F.J.
Harvey, R.M. Knoll, S.K. Koutsantonis, A.
Luethen, P. Michaels, A. Mullighan, S.C.
Murray, S. Patterson, S.J.R. Pederick, A.S.
Power, C. Sanderson, R. Speirs, D.J. (teller)
Tarzia, V.A. van Holst Pellekaan, D.C.
NOES
Basham, D.K.B. Bedford, F.E. Bell, T.S.
Bettison, Z.L. Bignell, L.W.K. Boyer, B.I.
Chapman, V.A. (teller) Close, S.E. Cook, N.F.
Gardner, J.A.W. Gee, J.P. Hildyard, K.A.
Hughes, E.J. Malinauskas, P. Marshall, S.S.
McBride, N. Odenwalder, L.K. Piccolo, A.
Picton, C.J. Pisoni, D.G. Stinson, J.M.
Szakacs, J.K. Teague, J.B. Whetstone, T.J.
Wingard, C.L. Wortley, D.

Amendment thus negatived.

The Hon. A. PICCOLO: I voted against that amendment, and I would like to explain why. First of all, I was not comfortable with some of the wording of the clause itself because I think it was a bit clumsy, and I take on board some of the concerns expressed by the Attorney-General. Also, I am not sure I agree with the level of penalty. I would have to say, though, that I strongly object to having one law for the professions and another law for other people. As a northern suburbs boy, I object to entrenching laws that actually create and perpetuate laws where, if you are an ordinary person, the criminal law applies. I will get to the point about the health model in a second, because I have heard it all day.

Secondly, if you are in a profession, you go through a separate model. Somehow your behaviour is less criminal, when it is quite clear that the intent of the bill was to address not professional misconduct—which I can understand the professions doing—but behaviour where a person knowingly breaks the law, and that is why I opposed this amendment.

Putting aside the issue of a complaint to police, because consent may be in this provision, I do object that we have new provisions in laws that perpetuate the difference for ordinary people, particularly people in my area. They are subject to one form of law where we do not try to find non-criminal models for their behaviour, while people who are generally professionals and are wealthy are subject to different sanctions. I probably would support further amendment because I do find provisions like this quite offensive.

The Hon. V.A. CHAPMAN: Can I try to provide some assistance to the member. In going to a medical model, we are making it very clear that a termination is a medical procedure. It has a proposed act all of its own for what is to happen here. The sanction against non-medical people is to make it very clear that they are not allowed to participate in this procedure. This is a medical procedure. It requires medical training and expertise to carry it out. Amateurs like you and me are not allowed to do it, and if they try to do it we are saying as a parliament that they will be punished for attempting to do that.

In relation to the question of saying that in some way this creates two standards of a professional disciplinary approach as distinct from a criminal approach, let me use lawyers. Nobody likes lawyers, except Andrea and I, of course. Lawyers have disciplinary action for breaches of code of conduct in relation to the standard of the application of the service that they do, in relation to knowingly not holding a trust account when they should and putting money through their office account, doing anything other than complying with the requirements that are set around their professional obligations. They have consequences.

But if they actually steal the money or use it for their own benefit, then they obviously can be charged with criminal offences just like anyone else. I think it is important to understand that it is actually a double whammy for professionals. You can be hit just like any other person in the community if you break the criminal law. In relation to a professional standard, though, there is also a privilege to practise. That can be taken away if they do not comply with the standards imposed by that profession.

In asking people to do a certain procedure like a termination, we are setting the rules about how they do it. We are saying that amateurs are not welcome, and if you try to do it there will be a penalty. We are getting that select group of qualified people to do that job, and they will lose the privilege to do that job as part of their profession and/or be sanctioned in the other way as I have said if they do not comply with that.

If there is misconduct—I will give a very simple example of proceeding with something without obtaining the informed consent—they may well find that it is referred to the DPP for a prosecution for assault as well. I just wanted to make that clear. I am not in any way advocating for some kind of separation of liability in respect of criminal sanction for the same conduct between a professional and a non-professional person.

The Hon. A. PICCOLO: I think the Attorney-General and I are going to have to agree to disagree because I do not accept her explanation. I do not accept it to an extent, for two reasons. One is that it is not a criminal offence by virtue of the fact of the way we have treated this matter. We have defined it as a non-criminal offence, which we choose to do in other places in non-professional life. We do have sanctions and choose to have criminal offences, so we create a body of law for professionals that is different from non-professionals.

The Hon. V.A. Chapman interjecting:

The Hon. A. PICCOLO: Let me finish, please. I did not interrupt you. We do create a body of law that is actually in its entirety different from non-professional life, and we criminalise a lot of behaviour in non-professional life, and we use a different process for professional behaviour and professional life. We do that, and we have done it for a long time. We still do it, but that does not mean we have to agree that entrenching that sort of distinction is appropriate.

Getting back to the medical model, or the health model, whatever you would like to call it, I understood that to mean that in terms of the woman involved—or person, as the act says—we want to make it very clear to remove the stigma of that action, etc. It is not an issue, and I understand that and I support that, but I never understood that to decriminalise, if you like, the behaviour or intentions of a woman's actions actually means everything is decriminalised, that the whole process is decriminalised, in a sense, and every party to it is decriminalised, which you are suggesting is the appropriate way to do it. That is certainly what I understood you to say.

In that regard, what we are doing, putting aside the one example you have provided about non-consent, in the case where consent is not an issue but where the medical practitioner still knowingly acts—not the second case, which I agree; the second limb of that one is a problem—we are putting them beyond the criminal law by virtue of the way we are defining this issue. We say it is not a criminal offence, therefore it is not a criminal law.

What I am saying is that in non-professional life we do not do that. We criminalise behaviour if you break the law in non-criminal life, so we do create a different standard for people in the professions. To some extent, I am not sure why a doctor who breaks the law in this case should not be subject to criminal sanctions—not the woman; we have all agreed that should be removed. The actual termination of a pregnancy should not be a criminal offence. We have set up a model and parameters, which you have acknowledged, for that to happen. What I do not understand is if somebody knowingly breaches that law, as distinct from some things that are about procedures or professional behaviour. I just find it inappropriate.

It is going to be a circular argument. I know what you are going to say to me in a second: you have professional misconduct, etc., all those sorts of things, but those things are different. That in itself is an example of how we use law differently for professionals as compared with non-professional people. We criminalise the non-professional person's behaviour—which I agree with—but if a doctor does the same thing it is treated differently. A person who does an act in this case can be treated one way; a person who does the same act will be treated differently. That, to me, means we have two laws and two standards. The only difference is that one is a non-professional and one is a professional. They commit the same offence.

Mr COWDREY: Point of order: with the utmost respect—the member for Light, I respect you, as you well know—I am not sure of the relevance to the debate at the moment. I would be very happy to have this principled debate at another time perhaps, but if we could get things moving, given the time, that would be fantastic.

The Hon. A. PICCOLO: The proposed 10A is actually going to deal with this issue in a slightly different manner, and I think it is important to set the framework for that.

The Hon. V.A. Chapman interjecting:

The Hon. A. PICCOLO: No, I understand that, but I am suggesting that is why it is relevant.

The CHAIR: What has just happened, I think, is the member for Light rose to speak and explained to us why he voted against the previous amendment, which, given the hour, is stretching things a bit. But, member for Colton, it is not for you to say that we should hurry up given the time.

Mr Cowdrey interjecting:

The CHAIR: I understand you are trying to be helpful but I do not know—

Members interjecting:

The CHAIR: Order! I do not know that we have had such a significant moral issue debated in this place for some years and, for that reason, I am giving everybody every opportunity.

The Hon. V.A. CHAPMAN: I am more than happy to have further conversations with the member for Light on this philosophical difference, but if I could just leave you with this thought. We do ask doctors to undertake a number of things. The example that has been given to me by the adviser is, if a doctor performs heart surgery and kills the patient, then we do not automatically send them off to be charged with manslaughter or murder. What he is subject to, though, is potentially unprofessional conduct or misconduct and has those processes of application, if he has failed to do a number of things in relation to professional standards for heart surgery.

That is the model we are moving to but we are setting out a certain set of rules in relation to termination of pregnancy. I think everyone in this room recognises that it is a very sensitive subject. We could have just put this into any other health bill, but it is being given a standalone process. After 51 years, if it is the will of the parliament to move to this new medical model, as has happened around the country—and where it has happened they have put it in a standalone and they have moved to that process without a criminal sanction—I am just asking that we be consistent with that.

I think some have the view, and perhaps you do, sir, that if there is a relaxation of the criminal sanction, in some way the health professionals doing terminations are going to get it easier. Compare that with the layperson, or the inconsistency with the layperson. The layperson is not a professional, does not have sanctions and is not able to be sanctioned because they are not a professional. I hope that helps. If it does not, I am happy to have that conversation with you. But clause 10 is to have sanctions against people who come in as amateurs and non-professionals to do this. I do not think I have heard any question or concern about that, and it exists in every other piece of standalone legislation around the country, so I ask, Chair, that you put the clause.

The CHAIR: Thank you, Attorney, for that instruction.

The Hon. V.A. Chapman: Request.

The CHAIR: Request, yes. I will put the question. The question before the Chair is that clause 10 stand as printed.

Clause passed.

New clause 10A.

Ms MICHAELS: I move:

Amendment No 1 [Michaels–2]—

Page 6, after line 19 Insert:

10A Unlawful termination by registered health practitioner

A registered health practitioner who performs or assists in a termination that is not authorised by this Act commits an offence.

Maximum penalty: $20,000

This amendment inserts a new clause 10A and follows on from this discussion. We now have a clause 10 which deals with unqualified persons. My clause is similar to the member for Black's in that it is dealing with unlawful terminations by a registered health practitioner but it is different in some of the wording, which I think may alleviate some people's concerns.

My amendment reads that a registered health practitioner who performs or assists in a termination that is not authorised by this act commits an offence. It does not deal with having a reason to suspect. It does not impose a gaol term, an imprisonment, simply a $20,000 maximum penalty, if a medical practitioner or health practitioner performs a termination that is not authorised by the act that we may pass at the end of this deliberation.

I cannot for the life of me understand how we can go through some 20 hours, I suspect, of debate on what we think is an appropriate termination and have no consequences for a medical practitioner who fails to act in accordance with what we as a parliament have determined to be appropriate. It is as simple as that.

Breaches of this act are not simply medical malpractice. We do not have a state-based act that says this is how we have to perform heart surgery and therefore there are no state-based consequences and no offences. We are putting this act in place, if we do pass it. Chair, as you said, this is very difficult piece of legislation, a very serious moral issue. To pass it without having any consequences for a medical practitioner or a health practitioner who does something contrary to this bill, to me, defies logic.

It absolutely defies logic to have nothing in terms of the consequences for a breach of that. If a medical practitioner decided on his or her own to perform a termination at 24 weeks without a second practitioner, they have breached the legislation. There are no consequences for that by this bill. This parliament is imposing no consequences for any medical practitioner or health practitioner who breaches this legislation.

I understand the Attorney talking about the AHPRA consequences and the disciplinary procedures, but that is outside of the control of this parliament. We have no say on that. As a legal practitioner who has been involved in disciplinary procedures of other solicitors, I can tell you that disciplinary procedures of any professionals are hit or miss. I have seen legal practitioners who have been convicted of criminal offences who still have their practising certificates. I do not want to rely on AHPRA to say whether a medical practitioner has or has not does something wrong. I want a penalty imposed in this legislation to say that this parliament takes this seriously enough and there are consequences.

The Hon. V.A. CHAPMAN: I thank the member. I actually agree with her. I think there have to be consequences for what clearly would be misconduct in relation to a deliberate breach of the terms of the instructions that we have set out in this legislation. Yes, this parliament has had and continues to have a role. We actually signed up, as a state, by laws we passed in this parliament to the national scheme—a very sophisticated scheme to deal with the disciplinary approach.

They have power to already fine up to $30,000, so it is way above actually what you have put in this sanction. So we have already signed up to that. We are a party to it. We have joined into it, and we have a sanction procedure for that misconduct. Yes, I agree there should be consequences. The structure that we have signed up to, as every other state that has moved to this model has signed up to, has also insisted that we have consequences by virtue of that process. That is why the inclusion of this provision does not add to that.

But I absolutely agree with the member that there must be consequences. I could read out the list again, but I think the member understands the structural arrangement, which includes a fine power of up to $30,000. I just say that the intention is clear. I agree with it, but it is covered. We have not introduced any such extra provision like this anywhere else around the country where we have moved to the health model.

Ms MICHAELS: I understand the Attorney's comments on AHPRA and our role in that as a state. That is very separate and very different from what I think needs to be consequences in this specific bill to deal with these specific provisions. We have spent a very long time trying to get to this point—years, decades to get to this point—and I do not want to see it watered away without having consequences imposed by this parliament in this legislation.

Mr MALINAUSKAS: If I may, Mr Chairman, in the context of my question, I voted against the amendment from the Minister for the Environment because I saw the amendment as being inconsistent with the overarching principle that I think the bill is seeking to achieve: the decriminalisation of the termination of pregnancies.

The amendment from the member for Enfield is different in nature. Notwithstanding the arguments around AHPRA, which I appreciate and largely endorse, I am interested in the Attorney's response to the fact that this amendment does not breach the principle of trying to remove criminality in the same way that the Speirs amendment did, and maybe if the Attorney could address that question.

The Hon. V.A. CHAPMAN: I am not sure whether having an imprisonment term or not makes the difference as to whether there is a criminal sanction as such, but it would be relevant to the amount as to whether it is in the Criminal Law Consolidation Act or some other sanction.

Here is the practical problem: I do not even know how we would work. We have signed up to the national scheme in relation to consequence, in relation to a failure to comply with the rules and regulations in the professional conduct of a procedure. If we have some extra provision, which is state based, do we go off to the Magistrates Court and prosecute under this act for the $20,000 fine? And, at the same time there is a disciplinary inquiry in AHPRA.

This is where it starts to get complicated because we have a model that suggests that we sanction by virtue of the withdrawal of the privilege of practice and/or limitation on it or supervision and all those things as the model and yet we are putting another sanction over which in some way or another has to be enforced through our state system. On top of that, it may also have a criminal sanction, of course, if the conduct is actually criminal.

To use a general statement, the signing up to the federal scheme, which the other states that have signed up to this have endorsed do not have a separate state sanction. We have joined up so that we can have uniformity. We can have an approach that is taken by the professionals at that national level with uniform application. We have accepted all the principles of that from this parliament and we have done so in a manner which the other jurisdictions are now employing for the purposes of their sanction in relation to those medical practices, including the termination process.

The only other thing apart from being struck off—I am advised that the continuum between proper conduct and unprofessional or unacceptable conduct in that sense is sometimes difficult to determine from an evidentiary point of view because of the nature of the professional obligations of what they are doing and the guidelines and so forth. That is why we have an AHPRA body that is filled with professionals, which can sometimes be supplemented for hearings, for them to be able to make their determination, because it is a complicated process in relation to those professional standards.

Anyway, we went through the state arrangement and we joined up to the federal scheme. If we introduce this as an extra sanction we could have two sets of proceedings going against the person at the same time. That clearly would not be desirable. As I say, potentially, if they have also actually broken the criminal law, they might have a third set of proceedings. That would go ahead anyway, and quite often, as the member would be well aware, being involved in legal professional misconduct matters. Usually the arrangement there is that the criminal proceedings progress first. With lawyers, of course, there may be some conduct by the Legal Profession Conduct Commissioner and/or then the tribunal and/or you front up to the Chief Justice in the Supreme Court to get struck off. There is a process for all the different professions.

The sanction of being struck off is obviously a fairly significant penalty in itself. We do want professionals to do this and provide this service, but they are also on notice that AHPRA will deal with them and, in this instance, they can get a penalty of up to $30,000. I think we have covered the field with the federal arrangement.

Sitting extended beyond midnight on motion of Hon. D.C. van Holst Pellekaan.

Ms MICHAELS: I come back to the Attorney's comments just then, which I do not follow on the basis that a medical practitioner, for example, who is convicted of a sexual offence against a patient will inevitably have two proceedings going against them. The public can cope, the DPP can cope, AHPRA can cope. As you have just said, legal professionals will have criminal proceedings and conduct proceedings at the same time, so I cannot accept the sense of that logic.

The Hon. V.A. CHAPMAN: In short, sexual offences are not in this procedure; the clinical practice is. Unfortunately, we have two sets now. Leaving aside the criminal sanctions for criminal conduct, we have two sets of sanctions now to apply to the same doctor or health professional who breaches the rules, and they can be going at the same time. I have never heard of that before.

Ayes 18

Noes 28

Majority 10

AYES
Brock, G.G. Brown, M.E. Cregan, D.
Duluk, S. Ellis, F.J. Harvey, R.M.
Knoll, S.K. Koutsantonis, A. Michaels, A. (teller)
Mullighan, S.C. Murray, S. Patterson, S.J.R.
Pederick, A.S. Piccolo, A. Power, C.
Speirs, D.J. Tarzia, V.A. van Holst Pellekaan, D.C.
NOES
Basham, D.K.B. Bedford, F.E. Bell, T.S.
Bettison, Z.L. Bignell, L.W.K. Boyer, B.I.
Chapman, V.A. (teller) Close, S.E. Cook, N.F.
Cowdrey, M.J. Gardner, J.A.W. Gee, J.P.
Hildyard, K.A. Hughes, E.J. Luethen, P.
Malinauskas, P. Marshall, S.S. McBride, N.
Odenwalder, L.K. Picton, C.J. Pisoni, D.G.
Sanderson, R. Stinson, J.M. Szakacs, J.K.
Teague, J.B. Whetstone, T.J. Wingard, C.L.
Wortley, D.

The CHAIR: Could members find their places, please. We still have some work to do tonight. The member for West Torrens has the call.

New clause 10B.

The Hon. A. KOUTSANTONIS: I move:

Amendment No 2 [Koutsantonis–1]—

Page 6, after line 19—After clause 10 insert:

10B—Foetal tissue

Despite the Transplantation and Anatomy Act 1983, or any other Act or law, a person must not enter into a contract or arrangement for the sale of foetal tissue obtained as a result of a termination.

Maximum penalty: $20,000.

Amendment No 2 standing in my name has a 10A and 10B. I wish to proceed only with 10B.

The CHAIR: But it will be known as 10A.

The Hon. A. KOUTSANTONIS: But will be known as 10A if successful. The purpose of this amendment is:

Despite the Transplantation and Anatomy Act 1983, or any other Act or law, a person must not enter into a contract or arrangement for the sale of foetal tissue obtained as a result of a termination.

The purpose of this amendment is, given the parliament has said what it has said about late-term abortions, there has been, unfortunately, in some jurisdictions around the world a lucrative trade. I have no concerns about medical research. What I do not want to see, though, is to profit from this matter.

You will see that this measure was originally linked to all surgical terminations being performed in public hospitals rather than in clinics for profit. That was defeated by the parliament. What I am attempting to do here is, given the parliament has taken a threshold decision to allow late-term abortions, we have now a process where there will be foetal matter in the possession of facilities that run and perform these services. The question then becomes: what should it be used for?

I imagine for some of the later term abortions or stillbirths there will be the ability to perform burials, but for the earlier term abortions the matter, the foetal tissue, should be used only ethically. I view that as a matter that this parliament should take very, very seriously. Some members have approached me about whether or not I would agree to an amendment to allow medical research. I have done my research on this particular clause, and the clause is clear: nothing stops this material being donated or given.

What stops it is a contract being signed for a fee, to profit. So, if there is life-saving medical research required that can be used on the foetal tissue, well, unfortunately, given the reforms made by the Attorney-General and the government, there will be more of it. Do we perhaps ensure that there is no trade in it and adopt this amendment? Again, I apologise to the house. These are not matters that we would normally be confronted with, but here we are.

I am happy to take any questions on it. I do hope that the proponents can see fit to accept amendments like this. I think they are ethical. I do not look to make a political point about this. I am just simply saying that if we are going to have these procedures, what do we do with the remnants? Families may decide first and foremost that they wish to have a traditional funeral. For those who do not, obviously we want to ensure that is dealt with in the most ethical way.

The most ethical way I can see to try to get some unanimity here in the parliament on this matter is just to ban the sale and profit. Again, I point out that I know that many members, proponents of the bill, want to be able to confidently say that it could be used for medical research.

My key aim here is to stop the profit or trade in this matter. I commend the amendment to the committee. I think there might be an amendment to the amendment by the member for Waite. It seems to me to be eminently sensible. I will let him explain that and I am happy to take any questions from members.

Mr DULUK: As the member for West Torrens has foreshadowed, I move:

After the word 'person' insert the words 'and/or legal entity'.

The amended amendment would read:

Despite the Transplantation and Anatomy Act 1983, or any other Act or law, a person and/or legal entity must not enter into a contract…

The CHAIR: Member for Waite, do you want to speak to that or is it self-evident?

Mr DULUK: It is self-evident, sir.

The Hon. V.A. CHAPMAN: Are we referring to the hospital?

Mr DULUK: Currently, Attorney, it says 'a person must not enter into a contract or arrangement for the sale of foetal tissue' and my amendment says 'a person and/or legal entity'.

The Hon. V.A. CHAPMAN: I understand what you are seeking; I am just asking what are we referring to here as 'legal entity'? Are we talking about the hospital or are we talking about some other corporate structure?

Mr DULUK: A corporate body.

Amendment carried.

The CHAIR: We can now vote on the amendment as amended. Attorney.

The Hon. V.A. CHAPMAN: I do have some questions of the member for West Torrens. I am just trying to look through the Transplantation and Anatomy Act 1983, which has been referred to in here. This is the legislation which basically provides for allowing the removal of human tissue for transplantation or post-mortem examinations, and for the regulation of schools of anatomy and other aspects.

I was actually looking for how we dealt with the embryonic tissue in relation to the research request undertaken. First we started with the embryos and the use of embryos for research, and then during the course of that debate, I recall there was a question of the capacity to access stem cells from the tissues that were born with a baby, and the use of those for research purposes. I do not think that it is referred to in this legislation.

I would have to have a look at what it is in and get some advice on whether this act is relevant at all, or whether other legislation is. I think what the mover is saying is that he has researched this, which I assume means he has had a look at this act—and there does not appear to be anything that stops contractual arrangements for the sale of tissue or body parts or anything of that nature. You have described it as 'foetal', and I am not sure that necessarily means that there is not other legislation that would cover that, so I would certainly have to have a look at it.

I think I understand the intent of this and that is that you want to be able to introduce some sanction against someone being able to sell or make some profit out of the use. I just alert the member to the fact that I can recall in this parliament that we canvassed the issue in relation to afterbirth and the like and use for research. Of course, that was controversial as well because obviously embryos under our embryo legislation are also given certain protections, but they also only have a certain storage time, for example. I think it is still 10 years that embryos are kept and then, if they are not utilised by the parties, they are actually thawed and disposed of. In fact, that whole controversy around use of that tissue for the purposes of research was the subject of fairly emotional legislation here.

I am not sure that it is just this legislation, but I do not think this is the area that actually relates to this at all. I would certainly have to have a look at it before I could consider giving any useful response as to whether this is actually necessary and/or appropriate. I will just make some inquiries as to whether anyone has found this in any of the other structures that we have set up in the other states.

In the meantime, could I ask the member this: I think he said that this was a problem in relation to sale in some other places. Was I assuming that this is not in Australia? Perhaps the member could enlighten us as to where he is aware that this is occurring.

The Hon. A. KOUTSANTONIS: I understand in the United States, in North America and some European jurisdictions. Depending on where the termination of the pregnancy is procured, there is a trade in this matter. My personal view is all these procedures, if we are to have them, should be done in public hospitals by government-employed doctors and medical practitioners employed by the state. The foetal tissue should be disposed of, firstly, by parents as they see fit. If not, I am fine for it to be given for medical research.

My concern is that we do not begin a burgeoning trade in this matter in Australia, that we maintain the high ethical standards we have had for the last 50 years about how this matter is treated and that we maintain that this parliament will not tolerate the profiteering off foetal tissue derived from a termination. If there is legitimate medical research to be conducted in the interest of the advancement of medical science, okay.

The parliament has taken the threshold position that we are going to allow more late-term abortions. There are examples the Attorney has spoken of, of young children who were having terminations rather than births, so we will see how they are disposed of. Again, I am not attempting to be in any way controversial. I just think it is a pretty self-evident clause that should be in our statute to prohibit profiteering from this procedure.

The Hon. V.A. CHAPMAN: I think I have found the answer for the member for West Torrens. Assuming for the moment the Transplantation and Anatomy Act 1983 does apply for what he views, section 35 under part 7 of that act prohibits the trading in tissue. I will just read it:

35—Certain contracts to be void

(1) Subject to this section, a contract or arrangement under which a person agrees, for valuable consideration, whether given or to be given to himself or to another person—

(a) to the sale or supply of tissue from his body or from the body of another person, whether before or after his death or the death of the other person, as the case may be;

(b) to the post-mortem examination or anatomical examination of his body after his death or of the body of another person after the death of the other person,

is void.

(2) A person who enters into a contract or arrangement referred to in subsection (1) is guilty of an offence.

Maximum penalty: $20,000.

Then there are other various subsections as to the application of that. I would suggest that it has already been covered, assuming the member is right in that only the Transplantation and Anatomy Act would cover that. It appears to be, because you are talking about foetal tissue. Perhaps you have a legal mind that has already identified the $20,000, but I think it is exactly the same as what you are proposing here.

The Hon. A. Koutsantonis: As I said, I am a Justice of the Peace with 25 years' service.

The Hon. V.A. CHAPMAN: Excellent. Well, I am sure that has stood you in good stead, and perhaps if you had read the whole act you might have found that bit and we would not have wasted another 15 minutes on it. I respect the fact that it has been raised, and I just point out it is already covered. Therefore, if the member would like to withdraw it, I am happy for him to do so to acknowledge that.

The Hon. A. KOUTSANTONIS: Thank you for your helpful suggestion—no, I will not be withdrawing it. Again, thank you for your wisdom, but I think if it is already done then the amendment is harmless. Let's put it beyond doubt in case there is some legal interpretation. The Transplantation and Anatomy Act might mean people who were already alive and have died rather than foetuses that have been aborted. So just to remove all the doubt how about we just insert this. I can assure the Attorney-General proponents that this will not slow down any abortions. This is just about an ethical standard about what we do with the remains.

I am not attempting here, as the member for Lee said, to roll marbles underneath someone trying to have a late-term abortion. All I am saying is let's treat the remains with an ethical standard, and that ethical standard includes medical research. I am just saying do not profit from it. If it already exists in other legislation, let's make it clear here.

The Hon. V.A. CHAPMAN: The more I read the more difficult it gets. There are other subclauses (3), (4), (5), (6) and I think (7)—I have not even got to (7) yet—but it also sets out another penalty if there is a publication or dissemination of various information about presumably advertising for the selling or buying in Australia. Somebody has obviously gone to a lot of work on this, and perhaps I am a little bit more comprehensive in dealing with this.

The little bit that the member for West Torrens, with respect, has put into this proposal is already catered for but there is also a whole lot of other things. I am trying to be helpful here. This is not only covered, but it is comprehensively covered in other ways and I just urge the member to have a look at that. That is the best I can do.

Ms MICHAELS: Can I just ask if under the legislation you were referring to, Attorney, does a foetus qualify as a person under what you were talking about before?

The Hon. V.A. CHAPMAN: If there is any tissue that is referred to taken from a body. Foetal tissue has been identified in this bill by the member.

Ms MICHAELS: In the transportation.

The Hon. V.A. CHAPMAN: The act states, 'to the sale or supply of tissue from his [or her] body or from the body of another person'.

Ms MICHAELS: When you say 'another person' does that include foetal tissue—

The Hon. V.A. CHAPMAN: Yes.

Ms MICHAELS: —because it refers to a person?

The Hon. V.A. CHAPMAN: Yes—no.

Ms MICHAELS: Does it? That is the question.

The Hon. V.A. CHAPMAN: Let me just read it again. The void application of the contract relates to where valuable consideration is given and a person agrees:

(a) to the sale or supply of tissue from his body or from the body of another person,

I think it is fairly clear it is tissue.

The Hon. A. Piccolo: No. In that act how is a person defined?

The Hon. V.A. CHAPMAN: Oh, I see.

The CHAIR: Rather than everybody yelling out—

The Hon. A. Piccolo: Sorry, Mr Chairman.

The CHAIR: Thank you. I think—

Mr ODENWALDER: I am happy to ask the question.

The CHAIR: Member for Elizabeth could you clarify the question.

Mr ODENWALDER: Just to clarify the question, in the act that the Attorney is referring to, does a foetus qualify within the definition of 'a person'?

The Hon. V.A. CHAPMAN: That is a very good question, but it says here a 'prohibition of trading in tissue'.

Mr ODENWALDER: Where is 'tissue' defined?

The Hon. V.A. CHAPMAN: I am not the one who has researched this act. It is referred to here in the member for West Torrens' amendment: 'Despite the Transplantation and Anatomy Act 1983,' etc., and I am indicating that I have looked at the act that you have referred to and it has identified a whole section on the prohibition of trading in tissue. I can go back and see if there is some definitions in it, but I would urge the member, if you would like to promote this as a—

The CHAIR: Attorney, the member for Lee is on his feet.

The Hon. S.C. MULLIGHAN: I am presenting myself as an amicus curiae for the Attorney. The definition of tissue is: 'includes an organ, or part, of a human body or a substance extracted from, or from a part of, the human body'.

The CHAIR: Thank you for clarifying that, member for Lee. Was that Wikipedia?

The Hon. S.C. MULLIGHAN: No, that is the act. I tried Facebook, but it was removed.

The CHAIR: There was nothing there.

Mr SZAKACS: Member for West Torrens, I just would like to get my head around the current situation, if I could. While it has been presented with the moot point that more late-term abortions may occur as we limp towards the third reading of this bill, the fact is that foetal tissue is currently generated as a result of terminations in this state, as limited or otherwise by the existing criminalised framework. What is the law as it currently stands? Is the sale of foetal tissue allowed in this state and, if it is allowed in the state, are you aware or can you point to a concern or a market therein? Foetal tissue is created now. This is a new provision, and I would like to know what currently happens and whether it is legal or illegal.

The Hon. A. KOUTSANTONIS: My understanding is currently the Criminal Law Consolidation Act is silent in terms of termination and the sale of body parts. Maybe the Transplantation and Anatomy Act speaks to it, but the definition does not include the term 'foetus' in the act. The reason it does not include the word 'foetus' is that the Transplantation and Anatomy Act 1983 did not contemplate the sale of foetuses. I am assuming—again, these are assumptions—that what currently happens in our public hospitals is that that matter is used for medical research or disposed of. I do not believe that SA Health enter into the sale of this matter.

An honourable member: What about individuals?

The Hon. A. KOUTSANTONIS: Individuals? I do not believe any mother of a terminated baby would ever sell the tissue. I am talking about an entity or an individual who is part of an operation that offers these services and, once the termination is completed, that matter remains at the facility and, rather than disposing of it through a medical research grant at either a public hospital or university, that is then sold for commercial use. All I am saying is that I want to prohibit that commercial sale.

My understanding is that thus far, for the last 50 years, this has been silent. All we have had since 1983 is the Transplantation and Anatomy Act. Since we are, let's face it, liberalising abortion, regardless of your view of it, there is going to be this tissue, so what do we do with it? My instincts are that for the later term abortions there will probably be a majority of them that will be given to families to bury.

For the earlier term abortions, closer to 22 weeks or before 22 weeks, depending on the size of the matter, the practicalities of how it is disposed may remain with the institution that performs the abortion. I am not saying that what they do with it should be prescribed. I am saying that they cannot sell it or enter into a contract to sell it. That is what I am attempting to do.

Mr SZAKACS: Thank you, member for West Torrens. I take comfort that within the existing criminalised framework where termination is to occur and that foetal tissue is within a legal framework which is silent on sale, there is not an allegation or a concern that there is a widespread market—

The Hon. A. Koutsantonis interjecting:

Mr SZAKACS: Well, that they are not aware of, and I take comfort that this is not an amendment that has been put forward to remedy a situation which has been put that is stark. One concern I have is that it talks about sale but I am interested in what may be the case. I am not aware, and you may not be either because of this not being widespread, but sale is different from reasonable consideration—as difficult as this might be to discuss—where costs may be incurred, where a family chooses to donate tissue for research.

Those costs may be incurred by either the individual personal donor, they may be incurred by the research institute, be it, in the case of the member for West Torrens' argument, a public hospital, a public research institution. I would be very hesitant and concerned about any limitations that this amendment would bring to cost recovery or for reasonable consideration outside of what would be, as you have put, profiteering or a market.

The Hon. V.A. CHAPMAN: I can provide something further if this assists because I think I have outlined that assuming the Transplantation and Anatomy Act applies, there is a comprehensive set of provisions under part 7, section 35. I invite the member to have a look at that. With the professor here, I have asked her to give some indication as to what happens to foetal tissue at present in South Australia.

At the moment, with regard to that foetal tissue—and I understand it is similar if someone were to miscarry naturally—after 20 weeks, in relation to a termination, the parents can organise a private funeral, burial or cremation, and that is facilitated. In the alternate, the hospital cremation is organised by the funeral home at a low cost to the hospital. That is what actually happens at the moment.

I suppose there is absolutely no data. I think even the member has no evidence to suggest that there is some kind of trade of this tissue or any foetal tissue in South Australia or Australia, from what has been said, but I just want to reassure the house that this is currently how this is dealt with. We are talking about a procedure that takes place in a hospital and you can have a different view about a public hospital or a private hospital, but this is a practice which is offered in both circumstances, whether it is at the Burnside Memorial Hospital or the Women's and Children's, this is the same process that occurs.

In the absence of there being any evidence of any issue about this, there is a whole section on these contracts if this act applies that void the contract, punished by a fine of up to $20,000 for entering into that or attempting to do that and then a whole lot of other aspects that apply to that. I encourage the member to have a look at that and if there is some pressing need to deal with it otherwise, I would encourage him to do perhaps a tiny bit more research as to whether this is necessary.

I simply have not had an opportunity to identify whether creating another offence, essentially, in this act is going to complicate the other because if we are talking about the same thing, then it may be that all these other qualifications and extra aspects should be in the other, if it is going to be replicated or if that is even practical to do so. I do not think I can assist any further. I cannot support it in the current form.

The Hon. A. KOUTSANTONIS: Again, thank you for the helpful tips from the Attorney-General. To answer my friend the member for Cheltenham's question, my understanding is that this matter is very valuable, and it is very valuable for medical research. I make no accusation of SA Health. I believe what the Attorney has said about the way these matters are disposed of now. What we do not know is what these regulations will look like. We do not know what prescribed facilities will look like and how many there will be, if there will be any. The Attorney is talking about the current practice and legislation that govern abortion and that were established in 1970. This is now a new act.

The Hon. V.A. Chapman interjecting:

The Hon. A. KOUTSANTONIS: No, I am talking about the Criminal Law Consolidation Act and abortion. I am positive that my amendment places no financial burden on families who wish to donate products because I imagine the institution that would take the products for medical research would cover all of that, if there was a cost, and that would not be covered by it. You are not getting a benefit; they are just covering the costs of transportation. It is not a sale. That is what the Attorney has said.

There is no definition of a foetus in the Transplantation and Anatomy Act 1983. To my mind, a very good lawyer before the right judge could probably argue that a foetus is not a human and therefore the act does not apply. All I am doing is attempting to add another prophylactic here to make sure that, if there is this trade, we have a catch-all.

I am not attempting to stop medical research; I do not want to stop medical research. I am trying to stop late-term abortions. It did not work. We lost and you won. Now that you have won, what we are asking is that we do not trade in the product of late-term abortions, or any abortions for that matter, for profit. Medical research is fine, especially if it is donated. Remember, the amendment is about 'entering into a contract or an arrangement for the sale' not 'the gifting of'.

Mr PICTON: This is a matter on which I have had a number of discussions with the member for West Torrens this week. I know that he has very good intent in terms of introducing this. It is something where I have raised a number of concerns, which I outline my issues with.

On the face of it, I think nobody wants to see a situation that I think the member for West Torrens is trying to prohibit, where people are profiteering from foetuses. I do not think that there is significant or much evidence that that is occurring, but I do not buy that just because there is not evidence that we should not necessarily prohibit something in the law.

However, one thing I have raised concerns about—and I will out myself as the member the member for West Torrens mentioned earlier—is what the impact might be for medical research. Obviously, we have a very important medical research community in South Australia, and substances such as stem cells, etc., are used. There has been a debate on this subject over the past two decades in Australia about the use of these.

There was a concern from me as to whether the way that this has been worded may outlaw contractual arrangements that people have in place, where there are financial arrangements in place with research organisations, about foetal matter that is used for the subject of research. I discussed with the member for West Torrens whether there could be an amendment put forward, and we went back and forth around that.

Ultimately, I was hoping that maybe we could come to an arrangement that everyone was happy with, but we could not do that. I am now particularly interested in what the Attorney has brought to our attention, in how a lot of this is covered under the Transplantation and Anatomy Act 1983.

We have had a discussion in terms of the definition of 'tissue' under that act, which I think is a very broad definition, including 'an organ, or part, of a human body or a substance extracted from, or from a part of, the human body'. Not meaning to put in an amicus brief like the member for Lee, I would argue that that would include the matter we are talking about. Where it outlaws contractual arrangements in section 35 in the same way I think the member for West Torrens is trying to do, it then goes on to have an exemption in relation to medical or scientific purposes. The sale or supply of those tissues under section 35(1) is prohibited, but section 35(3) provides:

(3) Subsection (1) does not apply to or in relation to the sale or supply of tissue (not being tissue obtained under a contract or arrangement that is by subsection (1) void) if the tissue has been subjected to processing or treatment and the sale or supply is made for use, in accordance with the directions of a medical practitioner, for therapeutic, medical or scientific purposes.

So our current law that covers this area does have an exemption in place for scientific research. I would be concerned that putting through this amendment as it is may seek to limit the research that currently may occur under that exemption in the Transplantation and Anatomy Act. Therefore, I do not believe I can support it in those terms, unless we have some assurance from the government that there would not be issues with any of our major research institutions, that the contractual arrangements they have in place with research would not fall afoul of that new provision.

The ACTING CHAIR (Mr Cowdrey): Member for West Torrens, are you looking to respond?

The Hon. A. KOUTSANTONIS: I have sought advice about this because I know that the member for Kaurna is not attempting to frustrate my amendment in any way. I think he agrees with what I am attempting to do, but he just wants to ensure that medical research can continue. I am not sure what amendment to my amendment would improve or make clearer other than specifically saying 'medical research'.

If that assists the committee, I am happy to contemplate it if someone wants to move it. But in the absence of an amendment like that, all I am attempting to do is stop the sale. I am not attempting to stop the transfer of this matter to any other institution, as long as it is not for consideration of profit. It is simple. That is why it is worded this way.

Mr Picton: Parliamentary counsel drafted it that way.

The Hon. A. KOUTSANTONIS: I do not want to mention parliamentary counsel; that is not fair. But I do think that if there is an amendment the government wishes to move, the government is telling me and the committee that this is covered already in the Transplantation and Anatomy Act 1983 and therefore it is unnecessary. The member for Enfield asked if a definition of a foetus is in that act. It is not, so we have to assume that the definition of human tissue is sufficient to cover a foetus.

I suspect we are all pushing on the same open door here, that this amendment does absolutely no harm to the Transplantation and Anatomy Act and does absolutely no harm to medical research. The only harm it does to anyone is a market in foetuses that have been aborted. That is it. That is my intent.

The Hon. V.A. Chapman: Okay, well, put it.

The Hon. A. KOUTSANTONIS: We will put it, yes.

Ayes 19

Noes 27

Majority 8

AYES
Bedford, F.E. Brock, G.G. Brown, M.E.
Cowdrey, M.J. Cregan, D. Duluk, S.
Ellis, F.J. Gee, J.P. Knoll, S.K.
Koutsantonis, A. (teller) Malinauskas, P. Michaels, A.
Mullighan, S.C. Murray, S. Patterson, S.J.R.
Pederick, A.S. Piccolo, A. Speirs, D.J.
van Holst Pellekaan, D.C.
NOES
Basham, D.K.B. Bell, T.S. Bettison, Z.L.
Bignell, L.W.K. Boyer, B.I. Chapman, V.A. (teller)
Close, S.E. Cook, N.F. Gardner, J.A.W.
Harvey, R.M. Hildyard, K.A. Hughes, E.J.
Luethen, P. Marshall, S.S. McBride, N.
Odenwalder, L.K. Picton, C.J. Pisoni, D.G.
Power, C. Sanderson, R. Stinson, J.M.
Szakacs, J.K. Tarzia, V.A. Teague, J.B.
Whetstone, T.J. Wingard, C.L. Wortley, D.

Clauses 11 and 12 passed.

Clause 13.

The Hon. V.A. CHAPMAN: Chair, if I may inquire as to whether I am the only one left standing as far as the amendments to this are consequential.

The CHAIR: It could end up that way, Attorney.

The Hon. V.A. CHAPMAN: I refer to amendment No. 6 standing in my name which provides:

After inserted paragraph (c) insert 'or'

(d) contravenes section 8A

The CHAIR: Attorney, could you take your seat for a moment. We are checking with parliamentary counsel on the procedure here because we have two amendments. Member for Lee, you get to move your amendment first which is on schedule (17), amendment No. 2.

The Hon. S.C. MULLIGHAN: I move:

Amendment No 2 [Mullighan–1]—

Page 6, line 31 [clause 13(1)(a)]—Delete 'section 5 or 6' and substitute:

section 5, 6 or 6A

I believe it is a consequential amendment and I encourage all to support it.

The CHAIR: The member for Lee has moved his amendment. Are there any questions to the member for Lee?

The Hon. V.A. CHAPMAN: I indicate that I consent to the same.

The CHAIR: Thank you, Attorney. In that case, I will put the question. The question is that the amendment moved by the member for Lee be agreed to.

Amendment carried.

The Hon. V.A. CHAPMAN: I move:

Amendment No 6 [AG–1]—

Page 6, after line 34 [clause 13(1)]—After inserted paragraph (c) insert 'or'

(d) contravenes section 8A.

Again, this amendment is consequential.

Amendment carried.

The Hon. V.A. CHAPMAN: I move:

Amendment No 1 [AG–3]—

Page 6, after line 34 [clause 13(1)]—After inserted paragraph (c) insert:

or

(d) contravenes section 6A.

It is again consequential.

Amendment carried; clause as amended passed.

Clauses 14 and 15 passed.

New clause 15A.

Ms LUETHEN: I move:

Amendment No 2 [Luethen–1]—

Page 8, after line 32—Insert:

15A—Annual report

(1) The Minister must, on or before 30 April in each year, ensure that a report relating to services provided in connection with the performance of terminations for the last calendar year is prepared and provided to the Minister.

(2) The report must contain—

(a) information in relation to each termination performed in the calendar year which must include the age of the pregnant person and the gestational age of the foetus at the time of the termination; and

(b) other information (including data and statistics) of a kind prescribed by regulation or determined by the Minister.

(3) The Minister must, within 12 sitting days after receiving a report under this section, cause copies of the report to be laid before both Houses of Parliament.

I will just point out, if anyone has not seen the update, it is changing the annual report from the financial year to calendar year, just to give the people who do the reporting more time for the preparation. As further explanation, this amendment means the state government would have to publish the detailed statistics of every abortion at the end of each calendar year.

This amendment inserts a new section 15A into the bill to require an annual report to be provided to the minister each year in relation to services provided in connection with the performance of terminations. Specifically, the amendment requires the annual report to provide information, including the number of terminations performed each year as well as the age of the pregnant person and the gestational age of the foetus at the time of the termination.

The amendment also requires the minister to cause copies of the report to be tabled before both houses of parliament each year. The collection and maintenance of data and statistics relating to terminations of pregnancy is currently managed by Wellbeing SA, which publishes an annual report on pregnancy outcomes each year. While copies of the report are tabled before both houses of parliament as a matter of convention, there is currently no legislative requirement for this to occur.

Some constituents in my King community have expressed reservations that if this legislation is passed the public may lose transparency, over-reporting, that late-term abortions may increase and that doctors may go rogue with their decisions. The maintenance and collection of information relating to the performance of terminations of pregnancy is vital to public health planning and service provision. It is also recognised as a matter of considerable interest to the public. Additionally, it helps us to gather and compare data over time on this critical health matter.

Accordingly, these amendments will ensure the data and statistics in relation to terminations of pregnancy continues to be collected and published in South Australia and will provide greater transparency in the reporting process. This amendment protects the information for the future. There is no intention that the data gathered include or publish any personal details of persons who have accessed the health service.

In summary, it provides comfort to those who have some reservations with the bill and allows us the data needed for evaluating performance of the legislation. I hope members will support this amendment.

The Hon. V.A. CHAPMAN: I indicate that I support the amendment.

Mr McBRIDE: If I may just add a few points—I have not spoken on this at all—and then I will ask a question of the Attorney or the mover, who may like to comment. First of all, it is well known around my region that my conscience vote for this abortion act is that I am very proactive and pro-choice. I am very supportive of women and their choice about pregnancy, family planning and the issues they might surround themselves with in giving birth, as women do.

I also belong to a very conservative electorate where they are very pro-life and believe in the life of a baby right through the term of pregnancy generally. In my electorate we are willing to concede that the rules that used to be in place for a pregnancy between 22 weeks and six days was acceptable and beyond that was always a question mark for me.

The reason I am talking on this point here in this review is this is where I believe my answers and solutions will be found for those who really do question this act. I will commend everyone at the end of my speech, but I do commend the fact that we have started off with a bill that is very open and there to be questioned and amended—

The CHAIR: Member for MacKillop, I have been very amenable today, this is sounding very much like a third reading speech to me.

Mr McBRIDE: I just want to explain my question. I will come to my question in a minute and then I will explain where I am going. In regard to the review that the member for King has moved, and is to be accepted by the Attorney-General, the review is the opportunity for whatever is the concern of those who are opposed to this bill to be highlighted to parliament to question and change.

The amendment the member for King has brought in is something that is already in place on a 12-monthly basis on all abortions: why the abortion, the age of the abortion and some other statistical data. Then, after four years, it is up for review to see whether the act should be reviewed as to whether it is working or not, and whether it is acceptable to the public or whether it is not acceptable.

This is where I find that those who are very much in favour of abortion and for the woman's rights, then I am hoping to say at the end of this process, after the third reading, after going through the upper house again and perhaps coming back here if there are any further amendments, that there is still a better process in place for women to have an abortion than under the old 1968 or 1969 act that was in place and that it is more opportunistic for women to terminate their pregnancy if those dire situations happen, particularly after the 22 weeks and six days.

There are a couple of things that are important. All these amendments are being moved through here. One thing that is really quite surprising is that we have GPs who go on to be professional obstetricians or medical practitioners, who spend four to seven years becoming those experts in this field, and not only that but right across the medical spectrum, and some of the dialogue we have heard so far is that they are being questioned like they are not honourable and perhaps need us as an institution to harness their activities. One of the things that is really noted and really unfortunate, was said to me—

The CHAIR: Member for MacKillop, I am going to have to bring you back to the amendment at hand. You are quite able to make a third reading speech when the time is appropriate, but I ask you speak to the amendment. If you have a question for the member for King, now is the time to ask it.

Mr McBRIDE: I will come back to the question, Mr Chair, to the Attorney-General or the member for King. If my electorate has concerns about the whole process beyond 22 weeks and six days not working, that it could be or may be abused, that maybe abortions will be taking place that are not tolerable or palatable to this chamber or to the general population, can either the Attorney-General or the member for King give me and my electorate the confidence that what the review will do is keep all abortions above board and for the right purposes?

The Hon. V.A. CHAPMAN: I think we are referring to the annual report, although with the foreshadowed next amendment—which, of course, is to conduct the review—they are in some ways in tandem because, to enable a constructive and effective review to take place, the data obviously needs to be in that.

I support this initiative. I understand there is some discussion about whether it will be in three years rather than four years, or something of that nature, and I am in the hands of the house in that regard; I do not have any objection to being either year in that. However, I think yes, especially in a circumstance where there is a new structure, even though it might be around other areas in the country—New South Wales, Queensland, etc.—the fact is that it is new here, and therefore I think we do need to collect some of this extra data.

It may be that we even need other statistics—I cannot think of any at the moment—in addition to all the others that are there. I had not actually been aware, until the member mentioned it, that the reporting to the parliament is not actually mandated. I am not quite sure under what power the parliament currently receives those reports, but we certainly have them as a tabled report and they are kept in the records here in the parliament. In any event, I will get onto that Clerk at some stage to find out why he is accepting documents where there is no authority to do so. However, this is going to remedy it, so that is excellent.

Will that give assurance to the member for MacKillop and the constituents in MacKillop? I would hope a review process will assist all members all across the state to have some reassurance that we are keeping tabs on this. We are collating data to try to identify that. It has not happened in any of the other states, but it might happen here. We need to be able to do that. We need to be able to test whether there is a particular age group that is vulnerable in this area, whether there is any increase in late-term abortions, etc., and the purpose for which they are undertaken. Some of that data is already collated.

This is a more sophisticated regime, and I hope it will give a better basis for the review to be undertaken. Again, with new legislation if a review suggests a number of recommendations for improvement, then it is a matter for the parliament of the day to consider those. I have no problem whatsoever in shining a light on this legislation. Even though as a parliament we may not have legally been required to either acquire or receive them, we have these reports, and I think they have been very valuable on keeping an eye on a sensitive procedure from the community's point of view.

New clause inserted.

Clause 16.

Ms LUETHEN: I move:

Amendment No 3 [Luethen–1]—

Page 8, lines 34 to 36 [clause 16(1)]—Delete subclause (1) and substitute:

(1) A review of this Act and Part 5A of the Health Care Act 2008 (including the administration and operation of this Act and that Part) must be conducted on the expiry of 4 years from the commencement of this section.

(1a) Without limiting subsection (1), the review must consider—

(a) the prevalence and practice of sex-selective terminations in the State; and

(b) the operation and application of section 6 and 6A of this Act, and the application and operation of comparable legislative requirements in other jurisdictions.

(1b) The person who conducts the review must not be a public sector employee (within the meaning of the Public Sector Act 2009).

To highlight to other members, just to ensure that they have seen the latest change, in (1a)(b) we have updated the first sentence to say 'section 6 and 6A of this Act' to reflect the change that happened earlier on in the process as we have been going through the bill.

As an explanation, the review is to give community members full transparency over data and statistics of the termination outcomes in the future, and to give community members visibility of outcomes related to specific concerns raised by community members, such as sex selection. I filed these amendments to legislate expanded reporting and review provisions.

This opens up the door in the future for a comprehensive review of the outcomes of the updated legislation. This amendment seeks to delete and substitute clause 16(1) of the bill, which makes provision for a statutory review of the proposed act and part 5A of the Health Care Act 2008 to be conducted after four years of commencement of the section. The amendment makes two key changes to the statutory review.

First, the amendment provides that the person who conducts the review must not be a public sector employee. This will ensure greater independence and transparency concerning the review process, which is considered to be particularly important, given the sensitive nature of the reforms.

Secondly, the amendments provide that, without limiting the range of matters that may be considered, the review must specifically consider the prevalence and practice of sex-selective terminations in the state, and the operation and application of section 6 of the act, including the operation of the requirement that medical practitioners consider that a termination can be medically appropriate as per the requirements agreed to in clause 6 and the application of comparable legislative requirements in other jurisdictions.

These issues have been raised as matters of particular interest to members, and it is appropriate that these issues should be reviewed and reported on further as part of the four-year statutory review of the act. The four-year term has been chosen after reflecting on earlier discussion held in the Legislative Council. I hope members will support this amendment.

The Hon. V.A. CHAPMAN: I indicate that I will be supporting this amendment.

Dr CLOSE: I indicate some concern about this amendment, and I mean absolutely no criticism of either the member or the Attorney in saying that, nor of the bill as it arrived here. I am concerned—and I would like to put that on the record—that these issues are immensely difficult and cause a high degree of elevated trauma within the political sphere and within the community for people who are deeply engaged in this matter.

I am concerned about a regular review of this act, creating a regular cycle of going through elevated lobbying, elevated anticipation of change, which, as we have seen, is difficult to get through and takes a long time—I do not mean the hours tonight; I mean the years since this act was first brought in. I am concerned that by creating a four-yearly review we may risk getting into a cycle of expectation and heightened concern within the community, which often has led to antagonism between people of different views and then disappointment or not.

My preference would be that a government having this report is excellent and a government reaching a view over a period of time or a private member reaching a view, having seen the reports over a period of time, feels that it is now appropriate to engage in a review and contemplate again the conditions of the act, would do that in a time that was most likely to benefit not only the parliamentary discussion but also the discussion that occurs in the community.

We need to not overlook the degree of emotional work that has been done by people in the community associated with our debates in this chamber. With that, I indicate my concern. I would be interested to hear if there are any other comments or questions?

Ms LUETHEN: Thank you for raising those concerns. I certainly acknowledge this has been a very complex and sensitive subject. Am I able to ask a question as well?

The CHAIR: Of the Attorney.

Ms LUETHEN: Not of the Attorney. I am just wondering, member for Port Adelaide, if in your thinking there was any other term that you think would be more appropriate given the comments you have made?

Dr CLOSE: No. I think it is best satisfied by opposing the amendment and, in fact, the clause and removing that from the bill. That is probably the way to deal with it and then enable the executive or a private member to address a reconsideration at a later date.

Mr COWDREY: For my confirmation, the clause as it currently reads just asks for a review in four years, not a four-yearly review?

The CHAIR: If I may read: a review must be conducted on the expiry of four years from the commencement of this section.

Mr COWDREY: So one review as opposed to a four-yearly review?

The CHAIR: One review after four years, yes. We have clarified that. Member for King, are you happy?

Ms LUETHEN: Yes.

Amendment carried.

The CHAIR: The next question before the Chair is that clause 16 as amended be agreed to.

The committee divided on clause 16 as amended:

Ayes 17

Noes 27

Majority 10

AYES
Basham, D.K.B. Chapman, V.A. (teller) Cowdrey, M.J.
Gardner, J.A.W. Harvey, R.M. Knoll, S.K.
Luethen, P. Marshall, S.S. McBride, N.
Mullighan, S.C. Patterson, S.J.R. Pisoni, D.G.
Power, C. Sanderson, R. Tarzia, V.A.
Teague, J.B. van Holst Pellekaan, D.C.
NOES
Bedford, F.E. Bettison, Z.L. Bignell, L.W.K.
Boyer, B.I. Brock, G.G. Brown, M.E. (teller)
Close, S.E. Cook, N.F. Cregan, D.
Duluk, S. Ellis, F.J. Gee, J.P.
Hildyard, K.A. Hughes, E.J. Koutsantonis, A.
Malinauskas, P. Michaels, A. Murray, S.
Odenwalder, L.K. Pederick, A.S. Piccolo, A.
Picton, C.J. Speirs, D.J. Stinson, J.M.
Szakacs, J.K. Wingard, C.L. Wortley, D.

The CHAIR: What I am going to do now is put clause 16 as printed.

Mr PICTON: Point of clarification: I thought what we just voted on was putting clause 16.

The CHAIR: No, what we just voted on was clause 16 as amended. The amendment had been successful, so we voted on—

Mr PICTON: So is this now a vote on the original clause 16?

The CHAIR: I have decided to do that because you as a committee need the opportunity to vote on clause 16, otherwise it would be knocked out completely.

Mr COWDREY: Is there the ability to recommit the first amendment in reference to the annual reporting and for it to be considered separately?

The CHAIR: The annual report was amendment No. 2 and that was carried. Amendment No. 3 dealt with the review after four years.

Mr COWDREY: Okay, so that vote was just on that?

The CHAIR: That amendment got up as well, but what this committee has just done is knocked out clause 16 as amended.

Mr COWDREY: Correct, so both of those amendments now do not exist?

The CHAIR: No, the first one does because that was clause 15A. So clause 15A exists and the annual review exists, but the four-yearly review as an amendment to clause 16 has just been knocked out because clause 16 as amended was defeated. What I am going to do now is put clause 16 as printed.

Clause negatived.

Remaining clause (17), schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (01:23): I move:

That this bill be now read a third time.

Firstly, I thank all colleagues for their participation in the debate and the very arduous task of having to consider quite an emotional issue for very many of us, and for the civility with which you have conducted yourselves—I say that to all members—in dealing with this difficult matter. I think this is a historic day for women and I think it is a historic day for the transformation of our management of this particular area of law. We have brought it into the 21st century. We have now made provision for women so that they do not have to go interstate to have a service that is otherwise available to other women across the country. Western Australia is still yet to deal with their matter, but I think that it is important.

I want to say this is in recognition of all those women who have undertaken terminations within the envelope of it being, firstly, illegal and then unlawful since 1969. There are many women, sadly, who have died as a result of complications with terminations when it was an act which was an assault, illegal and unacceptable. I think that is tragic. I think we all know of generations who have suffered in relation to that.

We do have a responsibility to make sure that we have the best available medical care for women who are pregnant in whatever way they and their partners and families want to develop with that pregnancy: to take it full term, to enable them to be able to raise those children and have the joy and privilege of children, or whether in circumstances a termination of that pregnancy is justified and the intervention needs to be regulated. It is a tough decision for these women and their partners and husbands to make.

The people who provide this service in counselling and in the administration of medical and surgical procedures are largely health professionals, but there are a number of other counselling and other services. There are also families who wrap their support around women who go through this procedure, and it is not just the physical procedure but the trauma of the decisions that are made.

I want to commend those women who have gone before. Some have died, some have lived with shame and some have faced a circumstance of prosecution. I think it is a wonderful day, that we have been able to achieve what I think is a piece of legislation that is not only groundbreaking but is in the tenor of an accommodation of a number of concerns that have been raised, so I have been pleased that we have been able to advance that very quickly, if I may say.

I just want to commend some extraordinary people. I start with Emily and the team from Legislative Services, led by Jo Martin in the Attorney-General's Office. I think they have done a stellar job in being able to bring us through the legal complications of this. We also have Professor John Williams and the team from the South Australian Law Reform Institute—months and months of work from them. We appreciate that compendium that they presented to us. There is Chris Moy from the AMA and his advisers, and Rosalie Grivell with the college. These people have not only provided advice, but they have made themselves available.

We have the Law Society of South Australia. Brigid Coombe and Dr Barbara Baird lead the charge with the SA Abortion Action Committee. There are a lot of others. Dr Judith Dwyer, for one, I think has provided excellent information to help us non-medical amateurs in the sense of that area of expertise to be able to navigate our way through this, and the health professionals themselves. I acknowledge those who work in this area and still undertake a very difficult task, not because of the history, necessarily, of the procedure, but because they are called upon to give counselling, advice, assessments, undertake the procedure and support women and their partners and families through this.

It is hard work, and when I hear of the process that is undertaken to deal with a late-term abortion for a family—and often that involves the woman, the partner and a whole team of people who are sitting around the table to try to help navigate that—it is obviously an extremely distressing circumstance. Honestly, I really feel that the work they do in being able to get that couple or that family through that situation is tremendous, and we really do owe a lot to them for undertaking this work. Clearly, it is only a few at the very high end of the specialties who are working in this area, and I think we should be very grateful for that.

I also just wish to acknowledge a number of other academics, of course. We have had the professor here to also give us advice through all the technicalities, and there is a whole army down there in the Department for Health and under Minister Wade who have really supported the development of this structure as the health model. Without their work and administration we really would not have been able to progress this, so I do thank them for that.

Finally, to all of you, I hope you all get a reasonable night's sleep, and I am deeply grateful for the consideration of the parliament and your support in passing this bill.

Mr KNOLL (Schubert) (01:30): My three minutes start, I think, now, member for Badcoe. I just wanted to explain the decision I am about to make. I think the bill we have arrived at here is better than the bill we started with. There have been lots of steps forward that have been taken, and I think each member is now going to look at themselves and, if they have been on various sides of this debate over the course of the last three days, about where they are now going to vote.

Even though this bill is better than it began, having wrestled with it over the past few hours I still cannot support the bill in its current form and, as such, I will not be supporting the third reading. Notwithstanding that, I am happy to see a lot of the good parts of this bill, including decriminalisation, get up in what I think will be a positive vote, and those changes can continue on.

Ms HILDYARD (Reynell) (01:31): I rise to make a few brief comments as around 22 hours of debate is close to conclusion. I wanted to start by saying, in agreement with the Attorney-General, that it is indeed a historic day—or a historic night, perhaps. We have made history, and I wanted to reflect on that and say that all progress, all progressive change in history, is made by people working together and relentlessly working together, sometimes over many, many years.

In saying that, I want to deeply acknowledge and thank the many, many women and their supporters who have worked on this for decades, to progress this change for decades, on whose shoulders we stand tonight. I wanted to sincerely thank the Attorney-General for her courage, her leadership and her strength throughout this debate. It has been extraordinary, and I thank you for bringing this legislation to the parliament. I absolutely thank you for the way you have conducted yourself throughout this debate and the wisdom you have shared so calmly and so eloquently. I wholeheartedly thank you for that and also for your camaraderie and willingness to work together on this bill.

I wanted to thank all my colleagues. Of course, when I say that, there are particular parts of this bill that we have not all agreed upon—in fact, many that we have not agreed upon—but I wanted to say, first of all, thank you to all my parliamentary colleagues because I utterly believe that every person has come to this debate with very deep thinking and searching their hearts, their minds and their souls to work out what they believe is the best way forward on this actually very difficult piece of legislation. I really wanted to thank everybody for the spirit in which they have come to this debate.

I also want to thank a number of my colleagues and friends: the member for Port Adelaide, the member for Cheltenham and a number of other members, including a number on the other side of the house. We have worked very closely together on this bill, and I want to say thank you to everybody for that.

I also want to briefly mention those from the other place who have contributed and also fought for this well into particular evenings. I say thank you to the Hon. Irene Pnevmatikos, the Hon. Michelle Lensink, the Hon. Tammy Franks, the Hon. Connie Bonaros, the Hon. Stephen Wade, the Hon. Ian Hunter, the Hon. Kyam Maher and a number of other colleagues there who also worked together closely to progress this incredibly important change.

I also want to thank and acknowledge the tens of thousands of South Australians who shared their views about this incredibly important bill. I think it is a tribute to our democracy that so many people took the time to engage and to share their views so openly and, in most cases, respectfully. They actually took the time to engage in various aspects of this bill and the difficult issues that we confronted. I know it would be the same with many other members. I certainly took the time to listen to people and to think about where people were coming from, as did many members of this house. I think it is a great tribute to our democracy that so many people engaged in the debate on this really important reform. To all those people, I wholeheartedly say thank you.

I particularly want to thank a number of people from particular organisations who are here with us tonight and who have been here for the long haul. When I say the long haul, yes, tonight in the chamber and previous nights in the chamber, but also in providing incredible advice, research, opinion, counsel and a willingness to answer questions at any time of the day or night about particular aspects of this bill.

I particularly say thank you to all at SALRI, to all at the AMA, to the incredible women at the South Australian Abortion Action Coalition and all of their supporters. Thank you particularly to Bridget, Judith, Barbara and the many others, and also to the many other organisations and people who have contributed to help all of us get to where we have arrived at today.

It is incredible change that we have achieved. It is incredible progress that we have made and I again thank everybody for considering it so deeply. In closing, I also want to say thank you to all the advisers and all the staff here in Parliament House who have helped us through the very many hours of this debate. Thank you.

Mr COWDREY (Colton) (01:37): Without reflecting on a vote of this house, I think it is fairly clear that there is enough support for the bill to pass, and I concur with the sentiments of the member for Schubert that the bill is improved from when it entered this place. I will be supporting the third reading and I do so for the following reasons. I believe the vast majority of South Australians and my community support the decriminalisation of abortion services in South Australia and I share that view. We are one of the last jurisdictions to make the shift from the criminal code to the health code.

I also believe in providing more equitable services, given that pre-22 weeks and six days gestational terminations have been, for all intents and purposes, legal in South Australia for nearly 50 years. I think this house would be doing itself a disservice to regional South Australians if we did not pass this aspect of the reform.

I made it clear in my second reading contribution that my primary concern for members of my community and me related to ensuring that late-term abortions continue to be rare and only performed in the most serious of circumstances. I note the amendment to the bill by the Attorney and recognise that this goes some way to providing a more prescriptive definition of the circumstances where a late-term abortion may be accessed. In my best efforts to reflect the concerns of my community, I supported an unsuccessful amendment, which would have further defined those circumstances.

I have also supported a range of amendments that I believe improve the bill, including one that explicitly rejects abortion for the purposes of sex selection. Again, while I do not believe that this practice is happening in our society today, I have no issue with this parliament specifically outlining opposition into the future.

The addition of the reporting provisions provides me with confidence that, into the future, we can ensure that the intent of this bill translates into practical application, that late-term abortions continue to be rare and only performed in the most serious of circumstances. I can only demonstrate compassion and empathy for those faced with these difficult situations, particularly in the circumstance of a significant abnormality diagnosed mid-term, most likely at or after the morphology scan. For those parents, the only thing that they are hoping for is a healthy and happy baby.

This situation, however, is an area of the bill where I have personally been conflicted. While I recognise that serious foetal abnormality may put babies' lives at risk and severely limit or erode all quality of life, I think we have to be incredibly careful with how this category is applied in practice. I think everyone in this chamber knows that I do not see myself as physically disabled. I know many of my colleagues simply see my ability and who I am as a person, not my congenital amputation. But, in reality, there was an increased burden on my parents that would not otherwise have existed. I know for a fact that they do not see it that way and that many in similar circumstances to mine lead full and happy lives.

While I do not believe that my situation or anything close to it would fit the words used in the bill, I do have a request for the Minister for Health: when drafting the regulations for this bill he requests that a high-level description for any termination post 22.6 weeks on the basis of foetal abnormality be included in the annual report. I simply want this parliament to be assured that, over time, the category does not have unintended consequences and that we continue to embrace and respect difference and disability in our community.

While this bill is not perfect—and in reality you quickly learn in this job that no legislation ever is—I am pleased that this debate has been for the most part incredibly respectful and that considerable time and attention has been devoted to this incredibly important social change.

The Hon. A. KOUTSANTONIS (West Torrens) (01:41): That is one of the bravest contributions I have ever heard in this house, and I have been here since 1997. I commend the member for his contribution. It was exceptional.

I would like to pass on my congratulations to the Attorney-General. I think she conducted herself exceptionally well, better than I thought she would. She did very, very well. That is a compliment, trust me; we have known each other a while. I have to say that she has done an exceptional job, because I thought she answered our questions quite diligently, which I was impressed with. I was not expecting it, so I thank the Attorney-General for actually taking the time to answer our questions. It was a very, very long debate.

I would like to thank the 5,000 people who marched in support of the sanctity of human life. I would like to thank the Australian Christian Lobby for the work that they have done. Christopher, to you and your members, thank you very much for all that you have done. To the faith-based organisations, from the Catholic Church, the Greek Orthodox Church and the Anglican Church to all the faith-based groups that have reached out to us, thank you again for your contributions. Thank you for the work that you have done to try to promote what people in your community and our community want to see in this bill.

I want to point out that my opposition to the late-term amendments moved by the Attorney-General—well, by the Hon. Michelle Lensink in the other place—were not, in my mind, about trying to prescribe an obligation for women as some form of misogyny; it was out of a heartfelt desire to try to save as many lives as possible. Again, that is very typical in these debates, where we can actually come together and acknowledge that good and well-meaning people, as the Leader of the Opposition has said over and over again, can come to different conclusions over the same issue, without vitriol, without abuse and without there being childish attacks on Twitter. By and large, I think this parliament has conducted itself exceptionally well.

To the people who are disappointed with the amendments, I apologise we were not able to get the sufficient votes. That is democracy. That is how it works. The system is not perfect, but it is better than any other system in the world. I also want to thank Minister Speirs for the amendments he moved, my colleague the member for Lee for the amendments he moved, my colleague the member for Playford for the amendments he moved, the member for Davenport, who moved his amendments, and of course all other members who moved their amendments, people who put detailed thought into this process.

In the end here, we have a piece of legislation that is unique to South Australia. It is different from what has occurred in other states because it is uniquely about what this parliament has now decided. I am assuming, by the words of the Attorney-General in welcoming this as a historic event, that the government will accept the bill as is in the upper house and this will be the final piece of legislation, but we will see what the upper house does with it. I understand it is a matter of conscience, but I am assuming that from the remarks of the Attorney-General.

I have never brought legislation into this parliament to ban abortion. I support decriminalisation of abortion, and I lament that, if the Attorney-General or the other movers had brought a piece of legislation into this parliament that simply took it out of the Criminal Law Consolidation Act and put it here, this debate would have been over in five minutes and we could have had another piece of legislation debating the other aspects of abortion reform. However, for whatever reason, the two issues were linked, which puts us in very difficult positions.

I understand that the member for Schubert, in his last vote on this matter as he departs from this parliament at the election, is now conflicted, as I do feel. I do support decriminalising abortion. I do not believe that women should be navigating the Criminal Law Consolidation Act to have access to abortion. I do not think anyone in this parliament does. However, we are being asked also to consider the liberalisation of late-term abortions, and that is very difficult for people like me and others in this parliament.

So I ask for understanding. It is a conscience vote. I thank our leader and deputy leader for the understanding that they have given us all in the parliament, for the way we have conducted ourselves. We are coming out of this more united, I think, than we were when we came into it. We have listened to each other, we have heard each other, we have disagreed with each other and we go on stronger. I am not disappointed in my colleagues who voted differently from me. I hope they are not disappointed in me. But I exercise my conscience, and I unfortunately cannot support the bill in its current form.

The Hon. D.J. SPEIRS (Black—Minister for Environment and Water) (01:47): I thank all members for their patience through this process over the last few days. Matters of conscience in any parliament in the Westminster system are incredibly difficult. They put pressure on us as individual representatives within our constituencies. They put pressure on relationships within our parties and across the house. They create unusual and fleeting alliances between members of parliament who might not normally have such alliances as part of the day-to-day course of business in the adversarial system in which we operate in here.

For me, as someone who chose to move a number of amendments and essentially go up against the Attorney-General, a cabinet colleague and a friend, that is particularly challenging, particularly when it is this Attorney-General. But we did so, and not just the Attorney-General and I. Across nearly all the amendments that were moved and the many clauses that were analysed, I think we did so in good faith and in good humour. I think that everyone who has been involved in this debate, almost all the 47 members of the House of Assembly here in South Australia, has conducted themselves with a great deal of dignity. They have represented their constituents well, and they have done so to the best of their ability.

Many of the clauses that were debated were complicated, with multiple impacts across the wider bill. I was speaking to the Clerk earlier and looking at the papers that he had in front of him. While our clerks are incredibly learned officials within this parliament, it was no doubt a professional development exercise for them. Of course, having announced his upcoming retirement, it was also an opportunity for the Deputy Speaker, the member for Flinders, to really challenge his role in chairing. I want to pay particular tribute to the Chair of Committees for that contribution.

As the member for West Torrens said, it becomes very hard for people when they have to rely on and trust their own conscience. They have to work through so many different issues. For me, I said in my second reading speech, very up-front, that I desperately want to support the decriminalisation. I do support the decriminalisation of abortion in this state, and my attempts through moving a range of amendments were not done in a way that sought to be misogynistic. I did not seek to belittle or degrade women in any way whatsoever. I believe passionately in gender equality.

However, I did want to put life and the opportunity to create a pathway to life for some more people at the heart of my decision-making, so I do struggle with supporting a bill that has, I believe, a set of restrictions that are not tight enough for me and my conscience to support. I do so with a heavy heart, because I thought at some points during this debate we would get there. We have not, for me personally, but I do celebrate the fact that abortion will be decriminalised and moved to the health code in South Australia.

I think that is a good thing. Many aspects of this legislation have been very good and will allow South Australia to move forward with this piece of legislation. Like the member for West Torrens, I hope that the regime that has been established in this house, building on what has already passed through the Legislative Council, will be honoured and move into law in South Australia.

The Hon. S.J.R. PATTERSON (Morphett—Member of the Executive Council, Minister for Trade and Investment) (01:52): I would like to add to the comments that others have made in this house reflecting on the third reading speech. I think it has been a very respectful debate. It has shown that all members of parliament have taken an interest in it. For me, in my second reading speech, from speaking with my community but also from my conscience, I said that I could see the way forward for decriminalisation; I supported that if it was a like-for-like transition out of the Criminal Law Consolidation Act into health law.

After that, adding to that was the scrutiny about other aspects to it. I spoke about how protecting the life of a viable foetus after 23 weeks was important to myself. I also believe the conscientious objection for doctors is really important for those who have trouble reconciling their professional judgement with their moral values or their conscientious thoughts. We need to find a way through for that as well, for them to be able to stay in practice because, as I said in my second reading speech, they are drawn to the health profession because they care for people, and I think we need to keep those people in the profession where we can.

I am pleased that we were able to make amendments to this bill to allow for that to be the way through. I am also pleased, as I said in my second reading speech, to put something in place around sex selection, that as a state we were able to realise that that is not something that we want to have occur in South Australia. I think that is a good thing in terms of trying to find that way forward for a viable gestation.

Had the parliament supported the Minister for Environment and Water on protecting the physical health of the woman who is bearing the child, I really struggled with the mental side. I think that needed to be in place for me. Had that been in place, as I said, I think that would have gone a long way to comfort a lot of people in my community.

As I said, the decriminalisation aspect I support. From that point of view, I think the way forward in this is a good thing going forward. I acknowledge the great work that the Attorney has done in bringing this to the parliament. She has been very respectful in the way she has gone about this debate and I commend her for the way she has gone about it.

The Hon. S.C. MULLIGHAN (Lee) (01:55): I rise to make a brief contribution at the third reading of this bill. I echo the sentiments that have so far been put on the record in the course of this third reading debate, recognising the extraordinary efforts that have gone into the preparation of the work that has informed this bill—the preparation of the bill, the campaign in favour of the bill. This has been an extraordinary amount of work outside the parliament before it has made its way here, firstly in the other place and this week in here.

I also echo that sentiment that these sorts of conscience issues and this conscience issue in particular is something that I certainly do not look forward to having to deal with. I was looking forward to dealing with the freedom of information bill this week, if I am honest with the parliament.

The Hon. V.A. Chapman: Do you want to start?

The Hon. S.C. MULLIGHAN: I gratefully accept the Attorney's offer to commence it immediately afterwards. Because these are such difficult issues, I am extremely grateful for the amount of effort that people have put into providing us with their views and advice on the bill, whether it has been from campaigners, organised groups such as the coalition in favour of this bill or other interested groups such as churches, individual constituents and people from other parts of the state and the country. It has all been extremely useful, valid and valuable feedback.

I also appreciate, as I have said in other parts of the consideration of this bill, the advice that we have had from the doctors, and not just from the AMA and the information that has been provided to us from the royal college but also other members of those organisations which have put slightly different or completely different views. In the end, it has been left up to each of us to form our own judgement on the bill. As I have said a number of times, I wholeheartedly support and share the desire to see this area of the law decriminalised and moved into the healthcare regime. That is entirely appropriate and long overdue.

As I mentioned earlier in a different part of this debate, I am also very comfortable with the change and recodification of the bill in regard to clause 5 and early-term terminations, if I can put it as clumsily as that. The issue for me, as I have said in my second reading speech and during the course of the committee stage, has always been the late-stage terminations. I did some work and tried my best to try to provide some better specifics around that and I am grateful that the chamber has accepted those.

I know that not everyone was thrilled that I did that, but the threshold issue for me was not quite the same as what has been expressed by, say, the member for West Torrens or the Minister for Environment and Water. But the capacity to access a late-stage abortion without a gestational limit, I have tried to provide the best strictures around that but I have not been able to satisfy myself and make myself comfortable with that part of the bill.

It is regrettable for me personally that that means that I will not be supporting the bill at the third reading stage because I wholeheartedly support those other two parts of it.

If I have read the room correctly, I think that the bill will succeed probably comfortably, and I think that is a good thing. It recognises the extraordinary work that has been put into it. It validates the campaign. It gets that important change, the decriminalisation, that we all know is long overdue. So I congratulate those who are to be successful in a short period of time, but I regret that I cannot support the bill.

Dr CLOSE (Port Adelaide—Deputy Leader of the Opposition) (02:00): I appreciate I am not in my seat. I hope that I have the indulgence of the chamber not to rearrange everybody. I speak today clearly to indicate that I support this bill, and I thank all the people who have been involved in getting it this far. Everyone who has spoken and said that they are not supporting the third reading seems to assume it will get through. I do not want to be superstitious, but let's assume that this is going to pass.

This is not quite the bill I had hoped for. This is not quite the reform that I think many people, but not all, had been looking forward to, but it is a very, very important day—morning, night—for us here in South Australia. What we have done is decriminalise abortion. We have done this for the first time looking at this area of law since 1969. That is only slightly less time than I have been alive.

We have done this, hour after hour, thinking through every single clause. There are great steps forward here—not only decriminalisation but also that women in rural areas will particularly be advantaged by this, only having to see one doctor in the early weeks when they are seeking a termination. That is an enormous leap forward for the women of this state but, in particular, rural and remote women, and I am delighted to see that.

We now for the first time will be able to have later term abortions legally considered in South Australia. Why do I say for the first time? Because there is the deep ambiguity over the 28 weeks and whether in fact 28 weeks is the cut-off or whether it is viability, which is now deemed to be earlier. That ambiguity goes. It is now going to be possible, if this bill becomes law, for a woman to seek an abortion for a variety of legitimate, distressing, weighty reasons and for that not to be subject to criminal sanction and for that not to be something that means she has to get on a plane and go interstate. That is a very important reform.

What we have done today is recognise that the world is difficult and that women face difficult decisions about pregnancies. We have not kept the idea that everything should just be lovely. We have all agreed—even those who are now saying that they will not vote for the third reading—that criminalising abortion is not the way we choose to be in our society. If it is true that this bill is going to go through and it is going to be become law, then we have made it possible for women to feel safe in going through one of the most difficult experiences of their lives.

I am grateful for all the people here on both sides of the chamber who have made that possible, and I am very grateful for the community, and I am looking at the gallery because many members of the community have stuck it out here to show their support for what we have done. I am grateful to you. I am grateful to all the people you represent. Despite having a share of disappointment in my heart, I am reminding myself that this has been a great day for us.

Ms COOK (Hurtle Vale) (02:03): I, too, would like to celebrate hopefully in the anticipation of the successful passing of this bill very importantly decriminalising abortion, which is an enormous step for women and families who are experiencing this terrible decision in their life, very traumatic, and also, however, for the clinicians, who play a huge role in supporting and providing comfort and care to people undergoing abortion treatment.

It also is an extremely difficult time for a clinician to support people through this process, but the staff at the Pregnancy Advisory Centre and at other regional outposts do that with enormous dignity and enormous compassion. I would like to take the opportunity to thank all the clinicians who have, over the years, under the shroud of criminalisation, provided such love and support.

As I have stated, it has been challenging as a woman to sit and have the capacity to make those decisions questioned and have some restrictions being placed on that decision-making process, but these things will be worked through and women and others undergoing abortion services will work through those processes and the carers, supporters and clinicians will support people through that.

I am very pleased to be part of a parliament that has worked together so well to get to this point. I would like to acknowledge the Abortion Action Coalition, who have been absolutely relentless over the past few years in getting us up and about and able to be strong with you. To Bridgett, Barbara, Nola, Judith and the crew, thank you so much. To all the other supporters who are here today, thank you so much for helping us to be your voice and the voice of women and families in our community.

May no woman or person accessing abortion services again be under the shroud of criminalisation and may no-one ever again have to travel alone in a car or plane for hours and hours by themselves without their family member, without their loved one to provide them support at the most difficult time of their life.

Thank you to my colleagues. Thank you, indeed, to the Attorney-General with whom I have worked really closely for the safe access zones legislation as well and now we have done the whole piece. Thank you very much and well done, everyone.

The house divided on the third reading:

Ayes 29

Noes 15

Majority 14

AYES
Basham, D.K.B. Bedford, F.E. Bettison, Z.L.
Bignell, L.W.K. Boyer, B.I. Brown, M.E.
Chapman, V.A. (teller) Close, S.E. Cook, N.F.
Cowdrey, M.J. Gardner, J.A.W. Gee, J.P.
Hildyard, K.A. Hughes, E.J. Luethen, P.
Malinauskas, P. Marshall, S.S. McBride, N.
Odenwalder, L.K. Piccolo, A. Picton, C.J.
Pisoni, D.G. Power, C. Sanderson, R.
Stinson, J.M. Szakacs, J.K. Treloar, P.A.
Wingard, C.L. Wortley, D.
NOES
Brock, G.G. Cregan, D. Duluk, S.
Ellis, F.J. Harvey, R.M. Knoll, S.K. (teller)
Koutsantonis, A. Michaels, A. Mullighan, S.C.
Murray, S. Patterson, S.J.R. Pederick, A.S.
Speirs, D.J. Tarzia, V.A. van Holst Pellekaan, D.C.

Third reading thus carried; bill passed.

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