HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
2021-02-17 Daily Xml
Contents
Pdf Xml

Bills

Termination of Pregnancy Bill

Committee Stage

In committee.

(Continued from 16 February 2021.)

Clause 1.

The Hon. D.C. VAN HOLST PELLEKAAN: Mr Chair, I draw your attention to the state of the house.

A quorum having been formed:

The CHAIR: The house is once again in committee on the Termination of Pregnancy Bill 2020. We are dealing with clause 1. The Attorney has the call.

The Hon. V.A. CHAPMAN: Speaking on clause 1, just as a preliminary, if I may confirm as I had last night that it is important that, having considered contributions over 10 hours, some refinement/amendment needed consideration. I undertook to do that, and I have indicated to the house that there are a number of amendments that are proposed for its consideration. Indeed, there has been I think a flurry of other amendments that have come through, and so I hope members in this rather complicated process have been able to keep up with that.

Nevertheless, can I just say before we consider the substantive matters of the bill that I would like to address some of the key concerns that have been raised about the bill, particularly in relation to some of the proposed amendments that members will be asked to consider shortly. As I said last night, many members have indicated that they are supportive of the spirit of the bill and the need for decriminalisation of abortion. They hold very serious concerns regarding some of the more significant aspects of the bill, particularly in relation to late-term abortions and sex-selective practices.

I appreciate that there is a wide range of views on these issues and that it will not always be possible to satisfy everybody with this bill. Nevertheless, I have listened to those concerns, not just from our members but obviously across the spectrum, and I am confident that there is a middle ground that we can reach to ensure that we do provide compassionate, safe, supportive health care for all women, and I do not think anybody in the parliament expects anything less than that.

Accordingly, I indicate that I will be moving a number of amendments in my name to specifically address the concerns that have been raised regarding late-term abortion and sex-selection practices. I urge members to seriously consider supporting these amendments.

Firstly, in respect of late-term abortions, currently the bill provides that a termination may be performed after 22 weeks and six days if two medical practitioners consider that termination is medically appropriate in all the circumstances. In considering whether a termination is medically appropriate, the bill provides that the medical practitioners must consider all relevant medical circumstances and consider the professional standards and guidelines that apply to the medical practitioner in relation to the performance of the termination.

Some members have raised that this threshold is too low and that it does not go far enough to provide sufficient certainty as to what constitutes a 'medically appropriate' termination. Some have claimed that this means that the bill will allow abortion to birth. Whilst I still wholeheartedly reject those assertions, I do not believe that the answer to these concerns lies in some of the amendments that have been proposed to date, and some of them are from my colleague the minister.

Under those amendments, for example, terminations after 22 weeks and six days will only be performed in circumstances where the termination is necessary to save the life of a pregnant person or save another foetus or there is a case or significant risk of serious foetal abnormality associated with the pregnancy that is incompatible with survival after birth, and the termination is performed in a prescribed hospital. I appreciate there has also been a further amendment to deal with rape and incest. I have not read that one, but I think it has come in today. If I call it 'the rape and incest' and then it consolidates.

Ms Bedford: No, 10 is here.

The Hon. V.A. CHAPMAN: I understand. I have seen it, but I am just saying it has been taken over now with a consolidated one.

Ms Bedford: That is the last one—10.

The Hon. V.A. CHAPMAN: Yes, thank you. One of the difficulties in relation to the specification of, say, rape and incest—which I wholly endorse need to be factors considered in the event of a termination—is best dealt with by example. We have started from all the legal minds who have been working on how this should best be explored, together with the medical expertise, which I clearly do not have and probably most of us do not, although I note that some members have health professional training.

I do not diminish that, but I do not know of any of my colleagues here in the parliament who are expert in relation to the medical procedures and terminations that we are being asked to deal with. Obviously, we have had to rely on a number of professional people in that capacity. If I were to give some examples in relation to where this is limited, I hope this makes it clearer. One of the scenarios was introduced by the Hon. Connie Bonaros in the debates in the other place, but it is a very telling one. It is a very real example of what happens in the real world, which most of us are completely protected from.

She described a young girl with an intellectual disability who had been sexually abused by a family member and fell pregnant. As a result of her intellectual disability, she was unable to appreciate or understand her pregnancy until she was in a late gestational stage. When the situation became known, the girl was clear that she did not wish to proceed with her pregnancy and a late-term abortion was ultimately carried out. The severe and adverse effects on her, had she continued with the pregnancy, were noted as the reasons for this.

For those who have had some experience, even with constituents, in dealing with the really difficult aspects in relation to someone who has the care of someone with an intellectual disability or a diminished capacity, for young women even the experience of a monthly period menstrual cycle is quite a traumatic experience in some cases. Of course, sometimes procedures are undertaken to try to minimise what is scary to some but which we as women might take as a normal course of our daily life.

We need to deal with that circumstance in the envelope of balancing all of the positions. Under my colleague's amendment—if I go to the consolidated one because I think it is the most comprehensive—this would not be achievable. In a case such as this, there would be no life-threatening situation. The person was not physically able to have the baby; it was not life-threatening. There was no suggestion that the foetus had an abnormality, severe or otherwise, and there was no suggestion that, whilst it was a family member, it was necessarily incest and/or rape—that has to be proved.

This is what happens. The only case I can recall—and I was not involved but I can recall that it was in relation to an incest matter—was a girl under 18 who was pregnant to her stepbrother. There was no common DNA, no blood relation and no breach of the incest limitations, which largely relate to criminal matters and/or the opportunity to marry, because obviously the Marriage Act has restrictions in this regard as well. They would be excluded.

Probably the most confronting is if we add in rape and we limit it to rape. How do we deal with, for example, one of the girls, who was identified as C1 or C2 in the recent Rice report, who was 13 years of age and apparently 14 when she delivered a baby, and then the other girl, who had access to a termination? Clearly, that is within the envelope of what is best to be able to deal with that situation. That is, again, a circumstance where we need to take into account unlawful sexual intercourse. In that case, as she was under the age of 14 years, it is a criminal offence with up to life imprisonment. The person who did it is now in gaol, but how do we accommodate it in this legislation? We cannot do that if we just restrict it to rape and incest.

We all know the obvious. It is always the grey area that we have to consider. I do not think anybody in this chamber would say that it would be reasonable to impose on one of the 13-year-old girls, where it was agreed she have a termination, that she should go through becoming a birthing mother and, in that case, presumably, hand it over or attempt to be a mother when she is a child herself. These are matters that really make it difficult to accommodate if we are too prescriptive. So whilst I agree and whilst I think the AMA have written to you all in the last 24 hours to say that prescription is not what they like, so be it. We are the parliament. We will make those decisions. But if you do, then please be alert to the problems that are here.

I recently had a lady write to me and I think most of you got the letter. I only got it in the last 24 hours. She identified a couple of other examples. One was where a pregnant woman was involved in a motor vehicle accident, was incapacitated—in fact, severely injured—and when she was able to recover her pregnancy was advanced and that was going to create significant complications. You all have the letter, apparently, so I do not need to necessarily go into the detail. I suppose we have to ask ourselves the question: how do we accommodate that?

Ms BEDFORD: Point of order at this point, Mr Chair: I do not wish to curtail the free-ranging discussion, but it is one-sided. I would like to ask you some questions about what is going on in this discussion.

The CHAIR: Thank you, member for Florey. I have given that some thought. Given that the Attorney has carriage of the bill, my feeling is that members here are appreciating some background, but by the same token I remind the Attorney that we are dealing with clause 1 at the moment and we will get to dealing with amendments as they become due. Member for Florey, you will have plenty of opportunity, I am sure.

Ms BEDFORD: I do not know because I will only have three questions and what the Attorney has said has already given me more than three questions, so if we are having this free-range discussion I hope that we will all be able to ask more than three questions if we need to.

The CHAIR: Let's see how we go on that, member for Florey. If this has raised further questions—

Ms BEDFORD: I am sure you will be very—

The CHAIR: Member for Florey, thank you, I am speaking. Given that we probably have quite a long evening in front of us, I will try to stay within the standing orders on this, bearing in mind that there are a lot of members here who will have questions.

The Hon. V.A. CHAPMAN: I note the member for Florey's comment and I totally respect it. In addition to that—

Ms Bedford: I don't mind you having an extra half-hour if we all get a half-hour too.

The Hon. V.A. CHAPMAN: I am trying to indicate, where there is a proposed amendment, what has been developed overnight, as I promised I would do, but I will move on to considering the second aspect, an addition to late-term abortion: the prohibition on sex-selective abortion. Again, members raised concern about this. A number of members raised concern about this and I acknowledge that is a very real concern.

I personally would think that it would be abhorrent to think that people would even be indulging in such a practice. I am personally satisfied that it is not a practice. It has not been identified as a practice, but it has occurred overseas, as members have pointed out, and therefore it needs to be addressed. I am concerned, on the proposal by the member for Playford, with whom I have also had a continued conversation, that there is a question of making it an offence for any person who performs or assists in a sex-selective abortion.

In addition to the grammatical matters we have had a conversation about, I have invited him to speak to parliamentary counsel on that. The issue of any person could potentially capture a pharmacist or other health practitioner whose only role is to dispense or administer medication or who is otherwise not involved in the decision-making process as to whether or not a termination occurs. I just want to add that for the benefit of the member for Playford, who has provided a substantial amendment.

The defence proposed by the amendment currently provides that it is not an offence if the health practitioner is satisfied there is a significant risk that the person born after the 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 which are not hereditary which could nevertheless result in significant disability to a person.

I am just trying to place that on the record as to where that has gone and the advice I have received. I have no clue when it comes to these things; it is not my area of expertise at all. I just think it is important that members be aware of those two aspects. With that, I indicate that I would hope everyone has some generous opportunity to be able to fully explore all the amendments before the house, and I am happy to be here to whatever time it takes.

The CHAIR: Thank you for that generous offer, Attorney. Are there any questions or contributions in relation to clause 1?

Ms BEDFORD: I will have a go, sir, seeing as we are being so generous here this afternoon. As you have brought up anomalies where certain types of people may not have their needs addressed by the bill, can you perhaps tell us if the term 'medically appropriate' appears in any other legislation anywhere, as well as the term 'in an emergency'? This is in an effort to try to define both those phrases.

The Hon. V.A. CHAPMAN: I just indicate that I was discussing that in the context of the amendments, not what is in the bill, but if you are asking me what is in the bill—

Ms BEDFORD: Well, 'medically appropriate' is in the bill.

The Hon. V.A. CHAPMAN: Yes, I agree; it was just in relation to the first aspect. My recollection is 'medically appropriate' is not, because the other application in other jurisdictions I think has the wording 'appropriate in all the circumstances'. The provision of 'medically appropriate' I suggest is actually to increase the threshold for what is required here. As we are moving to a medical model, this issue was generally canvassed with the SALRI, but other jurisdictions have passed legislation with what I would suggest is the lower threshold of just being 'appropriate in all the circumstances'. 'Appropriate' is by the medical practitioner.

Ms BEDFORD: I perhaps did not make myself clear. Does 'medically appropriate' appear in any South Australian legislation anywhere?

The Hon. V.A. CHAPMAN: I do not have any particulars of where it might apply, but it was a phrase used by SALRI itself. John Williams is the Director of the South Australian Law Reform Institute, so it is their wording, not mine.

Ms BEDFORD: The next logical question would be: what does it actually mean?

The Hon. V.A. CHAPMAN: When we come to the clause that is proposed in the bill, it has to be identified within the envelope of what the national standards require. The practitioner must take that into account. Remembering it has to be 'medically appropriate', an example that was given to me is you cannot just walk into a doctor's surgery and say, 'I want you to cut my arm off.' If it is not medically appropriate, he or she might not cut your arm off, so—

The Hon. A. Koutsantonis: You can't choose what arm?

The Hon. V.A. CHAPMAN: I am just indicating an example. I am not sure that is a helpful interjection from the member for West Torrens, but I will take any helpful interjections that members would like to raise. Is there a definition of what 'medically appropriate' is in the bill? No. My understanding is that what is appropriate in all circumstances is not defined in the other legislation interstate either. It is a standard that is assessed by the two doctors within the confines of their own regulation and their own guidelines, and that is specified a bit later on in the bill.

Ms COOK: If it might be of assistance, would the Attorney be able to describe a couple of medically appropriate circumstances?

The CHAIR: In what context?

Ms COOK: In the context of termination of pregnancy and the clause where the words 'medically appropriate' are used.

The CHAIR: So it is specifically about termination?

Ms COOK: Correct.

The Hon. V.A. CHAPMAN: Within the context of perhaps even a couple of the issues that have been raised, firstly there is the life threat to the mother. I think everyone, universally, as is currently the law, allows for a late-term abortion, as it is described, to take place.

The most common example that was given to me in consultation was where a treatment was to be applied to a woman who had been diagnosed with cancer while she was pregnant and the capacity for the mother to complete the pregnancy and produce a healthy baby would, as per medical assessment, leave her life at risk if she were to not take intervention. What was more commonly put to me was if she did not start her chemotherapy as a common treatment for that. Then there is the heartbreaking choice of what you do. So that is 'medically appropriate' in the context of a termination.

The other one that is most obvious—and I will again take the least controversial one—is where someone has a foetal abnormality diagnosed by paediatricians and the like to say that, for whatever reason, the foetus is now going to be born with significant and/or fatal disability. Again, the most common thing that was put to me is where a baby might be born with significant organ reversal, or even organs outside of the body. The capacity for them to then receive anaesthetic and survive is really just a tragic end for everybody.

These are the sorts of examples that were put to me. I do not know of these personally, but they were put to me as common areas of treatment, intervention and assessment medically, as to whether that was going to cause a threat to the life of the mother and/or the foetus, if the foetus was not lost in that scenario, and the birth of a child who may be non-viable.

Mr PICTON: In relation to current termination services being provided by the government, is it true that it is now two years since the surgery and Pregnancy Advisory Centre at Woodville closed due to air-conditioning problems at the time and that women seeking termination surgery have been moved to The QEH to undertake that surgery in the same operating theatres and areas as everybody else getting elective surgery? Is it true that that has reduced the capacity for women to get operations, from 16 per day to 12 per day? What is the government's long-term plan for the Pregnancy Advisory Centre? Will surgery return to the Woodville site?

The minister, I noted in estimates in 2019, said that the government at that stage was working on a long-term plan for the centre. That is now 18 months ago and nothing has changed. Certainly, when I visited and other members visited, the staff there were not aware of anything about addressing this significant issue they have.

The CHAIR: That is probably a question more relevant to estimates, Attorney.

The Hon. V.A. CHAPMAN: Possibly, but again, I answer the member this way. I heard this issue for the first time when the member made a contribution last night. The concern was about the failure to spend $100,000 to repair air conditioning and that had a consequence, I think, of having to direct patients into an area where they might have to share it with people with heart disease. Am I remembering exactly the same incident?

Mr Picton: Yes.

The Hon. V.A. CHAPMAN: Yes, thank you. I do not know the answer to that. I am more than happy to get a response from the minister. I have Health people here today. If at some time, even during the tea break, I can talk about what is the update on that and they have it, then I will try to get that for you.

The Hon. S.C. MULLIGHAN: Attorney, in your preamble to this stage of the consideration of the bill you made reference to the prescriptions in the bill, in particular the requirement that two doctors must determine that the termination is medically appropriate, and you made reference to the requirement also that it satisfies the national standards that apply to those medical practitioners. Where are those national standards defined or set out?

The Hon. V.A. CHAPMAN: I will just find the clause for you in relation to the obligation to take them into account. They are not published in the bill, obviously, but they are available. On my recollection, they have been circulated in the information we have provided. We will get an extra copy of them, if you have not read them. I will just find the clause that sets out that they have to take them into account. Clause 6(2) says a medical practitioner must consider:

(a) all relevant medical circumstances; and

(b) the professional standards and guidelines that apply to the medical practitioner in relation to the performance of the termination.

They are national standards. I am happy to get them circulated. I believe they have been circulated, but, if you have not read them, I can manage to get a copy for you.

The Hon. S.C. MULLIGHAN: I would be grateful for a copy, but my question was: where are they defined or where are they published? How often are they reviewed?

The Hon. V.A. CHAPMAN: They are published by the Royal Australian and New Zealand College of Obstetricians and Gynaecologists. I would have to find out for you how often they are reviewed. I will just see whether there is a date on this one. There does not appear to be, but I will make that inquiry.

The Hon. S.C. MULLIGHAN: My next question is: did the government consider including the standards which are relevant to termination procedures in the bill? If they did consider including them in the bill, why were they not included in the bill?

The Hon. V.A. CHAPMAN: Firstly, it is not the government's consideration; it is my consideration. Certainly, I am Attorney-General, and I have had the wise advice and counsel of SALRI, which has formed the base of the model that is before you. To the best of my knowledge, we had not received any advice from anyone suggesting that we replicate what is in a national guideline in the bill for the very reason that often they do change. I do not know of other legislation where we have written out what is in a format of a guideline. I indicate to you the title of this, and there are about four pages, is 'Late abortion'. Nobody has advised me to actually put it in the bill.

Clause passed.

Clause 2.

The Hon. A. KOUTSANTONIS: What is the government's plan for commencement? Is it by the end of this year or the beginning of next year?

The Hon. V.A. CHAPMAN: Again, for the purposes of common usage, I know that members keep saying 'the government'; it is my bill.

The Hon. S.C. Mullighan interjecting:

The Hon. V.A. CHAPMAN: I am just saying that, in relation to what is the government's intention, I cannot answer for the government because this is a private member's bill, but I am making—

The Hon. S.C. Mullighan interjecting:

The CHAIR: Member for Lee, just cease the interjections, please. The Attorney is attempting to answer the question.

The Hon. V.A. CHAPMAN: I am advised that, as with most bills, regulations would need to be prepared and circulated, consulted on, etc., before that final determination could be made. I do note that other jurisdictions around the country have progressed legislation in this form, some for a number of years, so it is not as though it is a unique piece of legislation which sometimes does require extra time. I am assuming that, in the event that the legislation passes the parliament, the regulations are prepared.

There would obviously be a review of other regulatory processes around the country. I am sure that they would progress it as soon as practicable, but there is no known date until that has occurred. It may be later. I think you asked if it was late this year or early next year, but it may be even later than that. I am expecting that, as it is a matter that has some precedent around the country, at least there will not be a need to look at a novel set of process.

The Hon. A. KOUTSANTONIS: Given the fixed date for proclamation will be done by the government rather than a private member and the Attorney flagged the development of regulations based on the precedents set in other jurisdictions, will the Attorney commit today in the house that she will hold a consultation period for those regulations, distribute the draft regulations in advance to all interested parties and take feedback from those parties on those draft regulations well in advance of any proclamation of the bill?

The Hon. V.A. CHAPMAN: I will take advice on process, but I am more than happy, and quite happily state here today, that once draft regulations have been prepared they should be available for anyone who wishes to do that. It is probably best that they be on a website, but again I will take advice on that. As a clear indication, rather than the usual suspects, all the legal people and all the medical people and all the associations that are both for and against—it has been a very wide group of stakeholders—I think you are saying that if an individual person wants to see those regulations, they ought to have an opportunity to review them before they are finalised. I give that undertaking.

Clause passed.

Clause 3.

The CHAIR: I want to talk briefly, Attorney, about the sequence of amendments this afternoon or this evening. My understanding is that the Attorney-General and the Minister for Environment and Water and now the member from West Torrens have the same and/or similar amendments, Nos 1 to 4.

In accordance with practice, I intend to give the Attorney precedence to move her amendments in lieu of the Minister for Environment and Water. Where the minister's amendment No. 2 is at variance to the Attorney's, I will invite the minister at that point to move an amendment to the Attorney's amendment. For amendment No. 1 and amendment No. 4, the member for West Torrens will have that same opportunity.

The Hon. V.A. CHAPMAN: Chair, I thank you for giving me the invitation. As this is essentially consequential on further amendments, may I suggest that we suspend consideration of this amendment until those more substantive amendments have been dealt with. Certainly, there is an overlap in relation to various amendments on file because this will be consequential if they pass.

The CHAIR: My reading of this, Attorney, is that your first amendment deals with the term 'prescribed hospital' and that it would mean 'a hospital, or hospital of a class' prescribed by the regulations.

The Hon. V.A. CHAPMAN: In any event, I am happy to do it. If nothing else happens and we do not deal with these other things, and for whatever reason none of these amendments get passed, then we may have to come back to deal with this. That is all. In any event, I am happy to deal with it on that basis, as you direct, sir.

The CHAIR: Attorney, perhaps if you move your first amendment now.

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

Amendment No 1 [AG–1]—

Page 3, after line 18—Insert:

prescribed hospital means a hospital, or hospital of a class, prescribed by the regulations;

I think the reason is self-evident. It seeks to establish a requirement for termination after 22 weeks and six days in the member for Black's amendment as well, and forms part of the broader set of amendments.

The CHAIR: Is there a contribution at all or questions to the Attorney on her first amendment? My understanding is that the member for West Torrens may wish to speak to this. The Attorney has moved her first amendment standing in her name. I give the call to the member for West Torrens.

The Hon. A. KOUTSANTONIS: Yes, sir. Is now the appropriate time for me to move my amendment?

The CHAIR: I was thinking you were moving an amendment to an amendment, member for West Torrens.

The Hon. A. KOUTSANTONIS: Yes.

The CHAIR: Then you move that now.

The Hon. A. KOUTSANTONIS: I move:

Amendment No 1 [Koutsantonis–2]—

Page 3, after line 18—Insert:

prescribed hospital means an incorporated hospital within the meaning of the Health Care Act 2008);

I have concerns about the practice of late-term abortions, if this bill is successful, in effect being able to be provided in clinics that could be operated solely for profit. I think it is in the public interest that, if the government's bill is successful, we put safeguards in the bill that would ensure that surgical abortions are conducted entirely within public hospitals.

What I do not want to see is what we have seen practised in some other jurisdictions internationally. I am not saying it is going to happen immediately, but what you can see happening are clinics for profit. Given the very broad definition that the Attorney-General is using for the appropriateness of abortions after viability and given the requirements in place for two approving medical practitioners being quite broad, I do wonder whether or not it is in the house's interest and in the parliament's interest to be quite prescriptive about where these procedures are conducted.

I accept the criticism from proponents that perhaps we are trying to solve a problem that does not exist. What I am saying to the house is that we have seen in other jurisdictions—not necessarily in Australia as yet, given the volumes—a large volume of abortions carried out. I could be proven wrong, but my view is, given the liberalisation of the government's bill of abortion procedures, we may see more of them. It is not definite, but we may. If we do see an increase in volume, will that offer a place for the private sector?

I understand that some of these services are already offered within the private sector and that there are some very reputable private operations that do offer them. What I am trying to foresee is: will this give an opportunity for new, opportunistic, entrepreneurial people to move into the market to try to take advantage of this? This is a prophylactic measure to try to prescribe what the house is seeking to do here.

I know this is difficult for everyone. This is the first amendment we will be considering that will probably be voted on. It is a bit of a litmus test as to where the house stands on these measures. I will be supporting future amendments moved by the Minister for Environment and Water, but my intention here is on the basis that, if all the amendments lose and the Attorney's bill passes unamended or amended as the government sees fit, this is a safety valve that we put into the bill early. That is why I am asking members to consider this.

It is a private member's bill that appeases some of the ministers in the government and is being given government time, government resources and government advisers. Regardless of that, what I am attempting to do is put in a safety measure in advance if the other measures are unsuccessful. That is my argument to the house and I am happy to take any questions from members if they have them. I commend the amendment to the house.

The Hon. D.C. VAN HOLST PELLEKAAN: First of all, would the Chair mind if I participate from here so that the Attorney-General has as much space as she wants for her paperwork and so on? Otherwise, I would be cramping her style. My question for the member for West Torrens is: his amendment talks about hospital as described in the Health Care Act, but his words were to the effect that he would only want these procedures to take place in a public hospital. Given that I do not know exactly what the description in the Health Care Act is, when he says a public hospital, does he mean a public hospital as we would know it or a public or private hospital and those types of institutions?

The Hon. A. KOUTSANTONIS: I understand that the Health Care Act is based around public hospitals. I was using colloquial language to explain to the house what I am talking about. It is under the current regime.

The Hon. S.C. MULLIGHAN: I rise in support of the member for West Torrens' amendment to the Attorney's first amendment. This is a concern that I share for a couple of reasons; one is I agree with the reasons that the member for West Torrens has put forward about the significant change that the Attorney's unamended amendment will provide to the current regime of providing terminations here in South Australia, particularly surgical terminations.

At the moment, as I am sure we are all aware, the vast majority of terminations, which are surgical terminations, occur in public healthcare facilities. There is a minor exception to that and that is those that occur in regional areas. It is certainly my understanding that the Health Care Act enables a small number of country hospitals—some of those members opposite me who perhaps represent electorates that contain these hospitals would know this better than I—to conduct these procedures. But that is by far and away the very, very slim majority of these services that are provided across the state. The vast majority occur in metropolitan Adelaide and, of course, occur necessarily in public healthcare facilities.

The concern that the member for West Torrens has about introducing the unfortunate profit motive into the provision of these services is something which I think should be avoided at all costs. But I want to raise an additional reason, and that is one which has occurred to me during the course of the discussions that I have had before this debate has been held in this house and the representations that have been made to me in preparation for this bill being considered by this house.

When I have raised concerns that I have had about I was going to say late-term abortions, but perhaps I could say abortions perhaps occurring after the 20-week period, and how that may be possible under the ambit of the bill that is being proposed by the Attorney, the response invariably has been, 'That's not going to happen. That's not what happens at the moment.'

Well, what happens at the moment is that the provision of these surgical terminations is motivated only, solely, by healthcare considerations. We know that because they are being provided in a public hospital. There is no profit motive. There is no incentive for throughput or to conduct a number of services. It is based solely on what is in the best interests of that particular circumstance, and perhaps if I can put a finer point on it in the best medical interests or medical considerations of that situation.

I do not think it is too much to ask at this early stage of considering this bill that we do not introduce this unfortunate profit motive by opening up the provision of these termination services, these surgical termination services, into private clinics. There does not seem to be any need for it whatsoever, notwithstanding the concerns that the member for Kaurna raised about the adequate resourcing of the Woodville Park facility. Beyond that there does not seem to be any need for it, because for many, many years we have had the arrangement where it is conducted almost exclusively—with that slight exception in those country areas—within public healthcare facilities, and I would urge all colleagues to support that.

This is not the juncture at which we should be introducing an unnecessary and unneeded broadening of the provision of these services into the private sector.

Mr SZAKACS: I have a question for the member for West Torrens as the mover of the amendment to the amendment. Can the member for West Torrens point to any other matters of health care or surgical intervention that are regulated under the Health Care Act, or other act in this state, that are similarly safeguarded in the manner the member for West Torrens proposes in his amendment?

The Hon. A. KOUTSANTONIS: No, I cannot because this is a unique situation. We are talking about termination of life of some babies. This is unique, and that is why it is a unique response. Healthcare provisions in this country have been provided through private providers for decades, because some people prefer to have their surgeries on themselves or procedures in the private sector.

What we are saying here is that we want to remove a profit incentive provision of this procedure, not generally. I am not attempting to shut down the private healthcare system. I am supportive of the private healthcare system. I am talking about a profit motive for ending the lives of viable babies. Again, we get back to the original debate in the second reading speeches. I do not want to relitigate it because we have had the second reading and that has passed the house. My point in the second reading, if I am understanding what the Attorney has said, and my interpretation of the bill that is before us is that it will allow the termination of viable, healthy babies past 22 weeks and six days.

What I am attempting to do is to put a prophylactic measure in place to try to stop a profit incentive in that procedure, and it would simply be about providing—if the bill does pass—safe abortions within the public healthcare system only, not in a for-profit environment. It is entirely up to the committee how they treat this amendment. Again, as said in our second reading speech, this is a lot like 1890. This is what the parliament would have looked like pre political parties. I understand what the member is saying but this is a unique situation requiring unique amendments.

The Hon. V.A. CHAPMAN: Can I indicate that my understanding on the advice I have is that the effect of this is that it would require that any surgical terminations—and that under the bill would be from nine weeks—

The Hon. A. KOUTSANTONIS: That is not my intention.

The Hon. V.A. CHAPMAN: Well, I am just saying—there would be surgical terminations essentially if you could not take the medical option up to the nine weeks opportunity. Yes, there might be four or five cases a year that are what we are calling 'late-term abortions', given those standards, but there are also those who would go in for a procedure.

Essentially, the effect of the amendment to the amendment is that it would only be allowed to occur in a public hospital and not a private hospital because, under the act, an incorporated hospital does not include a private hospital. So here's the dilemma. Let me just add one more piece of information, I am advised, and it is probably in my annual report to the parliament; that is, apparently only about 0.05 per cent of surgical terminations are currently done outside the public hospital sector.

If a mother in that 0.05 per cent either lives in a remote location and needs to have access to a private facility, rather than going to the next town down the road or whatever, or is a regular client at, say, St Andrew's Hospital—and I do not say that for any other reason than that they might have all their other obstetric and treatment done with the specialist at that hospital—then the effect of this amendment to the amendment would be to say, 'No, if you're going to have a termination, you will have to go to either the Women's and Children's Hospital, for example, or the Woodville Clinic.'

I am not sure entirely what the status is of the Woodville Clinic. It is under a health network. It was established from an organisation established by SHINE SA, which used to be in my electorate. It was moved down to Woodville and then set up as a facility to be able to offer pregnancy services, so I am not sure what its total status is. But I think I understand correctly that the amendment to the amendment would be that those small number of cases that are in a private sector using a private sector hospital should be excluded because in some way terminations might be seen as profit making.

I have never experienced that as being a difficulty. It may be that the passage of this amendment to the amendment may only affect a few, but I do not know the details of who it might affect. I can only imagine that there might be some regional aspects of this that would cause some further inconvenience to people in a rural community or where they are not near our big hospitals that currently provide this service.

I would prefer that it be still left as a choice matter. If there is any example where there might be some practice operating that is seen to be unacceptable, then please let me know and I would be more than happy to accommodate it. I think it would be unreasonable to restrict it. It is not going to be terminal to the actual provision of the service for most people.

There is one other thing, and I think the health minister made a point in the other place during the debate on this matter; that is, there is a very significant cohort of medical and health professionals and specialists within the public health sector who provide this service—amongst many others, but they provide this service—and it is the intention certainly of our government that we maintain that critical mass of expertise in women's health and treatment, so we are not in any way proposing to get out of that space.

Other than the 0.05 per cent that was indicated, we do all that work and must provide, presumably, a very good service for it to be so oft used in an environment where the private sector is available but apparently not being taken up by the population to any large degree. That is the best I can offer on it.

The CHAIR: I will come to this side, deputy leader.

Dr CLOSE: Sides are an interesting concept at the moment.

The CHAIR: Well, it is an interesting concept. I feel better going side to side.

Dr CLOSE: I am asking the member for West Torrens a question. As I understand it, this is intended to have the effect of essentially restricting access, so this form of location for a surgical termination would not be available and it would only be this form.

I wonder if the member has contemplated an unintended consequence, which might be that someone who has resolved that she is in need of an abortion—and it is a very difficult time and every day must weigh heavily once you have had to reach that conclusion—is restricted so that a pregnancy goes on longer than it would otherwise. Therefore, there is the impact not only on the foetus but also on the mother and the family that they are having to wait longer because there may be, through a variety of circumstances, more of a delay at the public facility, but the doctors say, 'We can't send you down the road to the private hospital.' Is that an unintended consequence that is possible and is it something that might make you reconsider the implications of what you are proposing?

The Hon. A. KOUTSANTONIS: Do I think a Liberal government might underfund our hospitals? Yes, I think they do underfund our hospitals. However, I know that if it is an emergency and we are getting to a deadline—

Dr Close: Time is crucial.

The Hon. A. KOUTSANTONIS: Time is crucial. I hope that every pregnancy goes to term and that every baby is born healthy—we all do. But again we get to the point where you either support a gestational limit or you do not. I support a gestational limit. What I am talking about here is trying to put a prophylactic measure in so we do not see an incentive for profit.

Could there be unintended consequences? I could make the same argument about the broad definitions that the Attorney is using about allowing abortions for late-term mothers, where you could see viable babies aborted. Yes, there may be unintended consequences littered throughout this bill, no doubt. I do not think this bill is perfect. I do not think my amendments are perfect. I do not think we can amend this bill and make it perfect.

What I am trying to do is shrink that profit incentive to keep this within public hands, within public hospitals and with doctors, nurses and practitioners who are not motivated by profit but who are solely motivated by the care and concern of that mother—that is it. That is what I am trying to do. Is it perfect? No, it is not, but again this bill is not perfect. For me, this bill has gaping holes in it and that is why it is such a controversial piece of legislation. I cannot assure the member with what she is asking, and I do not think that I could be assured that the bill does not allow the termination of viable healthy babies.

Mr KNOLL: I rise to make a few points on this. First off, I think it is one of the few times I will agree with the member for West Torrens that there should not be a profit incentive. It was pointed out in the member for Lee's speech, when he spoke about the SALRI report, that this issue is not just a medical issue but it has ethical and social concerns also embodied in it. That is why we are debating it in this place rather than just leaving it to doctors.

In this instance, I think restricting this to public hospitals is appropriate not only to get rid of the profit incentive but also to make sure that those ethnical and moral dilemmas we are grappling with here this afternoon can be looked after and controlled in a way that we, as this parliament, as the representative of our people here in South Australia, would want us to.

The principal point I want to make on this is that the Attorney points out that 99.5 per cent of abortions are currently undertaken in public health facilities. I think that shows that we have a public system at the moment. But what we will see over the course of this debate in a number of the amendments we are going to discuss is that this bill needs to be forward looking and future looking and that it is not just about today. It is about what happens over the next 50 years before this act is amended again. We need to have a future-proof, forward-looking piece of legislation that takes into account some of the unintended consequences that we can foresee today.

I think the passing of this bill in its current form could see private for-profit clinics open or indeed for-profit private hospitals get into this space in the future. That is something we need to safeguard against. Again, the fact that 99.5 per cent of current terminations are undertaken in public facilities shows that we have a handle on this and it is not an immediate issue we need to deal with, but it is one that we need to future-proof for generations to come and ensure that we have done our due diligence thinking of what we understand at this point, imperfect as it is, the future consequences may be and make sure we safeguard against them.

Mr PICTON: I will try to provide some information that I am aware of. I understand that for a number of members who raised concerns on this, their concern is in relation to not wanting to open the door to private for-profit delivery of terminations. I would argue that the fact this does not happen in South Australia at the moment is not by virtue of the law but probably by virtue of Medicare and other funding arrangements. Historically, since our reform 50 years ago, the state has invested in public services such as those I am raising concerns about with the Attorney today.

I went back and looked at the current law, which I do not think we have done too much during this debate so far. I had a presumption that there was a very limited list of places in which legal terminations are allowed, largely in the public sector. However, under the Criminal Law Consolidation Act, the law states:

…where the treatment for the termination of the pregnancy is carried out in a hospital, or a hospital of a class, declared by regulation to be a prescribed hospital, or a hospital of a prescribed class, for the purposes of this section;

At the moment, there is no legal limit that it should be at a public hospital. In fact, the Criminal Law Consolidation (Medical Termination of Pregnancy) Regulations 2011 list all those hospitals, which include a significant number of private hospitals, that today are legally allowed to provide terminations.

These include: Ashford Community Hospital, the Burnside War Memorial Hospital Incorporated, Central Districts Private Hospital Incorporated, Flinders Private Hospital, Glenelg Community Hospital Incorporated, The Memorial Hospital, North Eastern Community Hospital Incorporated, St. Andrews Hospital Incorporated, Southern Districts War Memorial Hospital Incorporated, Stirling and Districts Hospital Incorporated, Wakefield Hospital Incorporated—which I presume may not exist anymore; maybe that is now Calvary—and Western Community Hospital.

All those places are legally allowed to provide terminations at the moment. Obviously, people will come to their own determinations about the various amendments, but making it a public-only list of places that can provide abortion or termination services actually makes it a more limited list than what is in the current law of the state under that act and those regulations.

Another point I will note for the benefit of members is around the way the Health Care Act works. There is a backwards definition of an incorporated hospital, which is on the basis that incorporated hospitals are basically local health networks. I do not want to get too much into how we navigate commonwealth taxation law to help our hardworking healthcare workers, but if you work for an incorporated hospital then you are entitled to certain taxation benefits.

All our local health networks are incorporated hospitals. Flinders Medical Centre is not listed separately; it is the Southern Adelaide Local Health Network. The Royal Adelaide Hospital is not listed separately; it is the Central Adelaide Local Health Network. That means all of the parts of those hospitals would therefore be described as part of a service that could provide those services. At the moment, under the regulations that are set by the minister, it is much more specific to those individual hospital sites—so, The Queen Elizabeth Hospital and the Royal Adelaide Hospital as part of the Central Adelaide Local Health Network.

Other aspects of the Central Adelaide Local Health Network that do not provide services of the type that could be considered—i.e. SA Dental Service and SA Pathology—are not included within the current law and the current regulations as being able to provide termination services. I thought I would provide that background of the current state of both of those laws for members' consideration.

The CHAIR: Thank you, member for Kaurna. On a point of clarification, before I call the member for West Torrens, you mentioned, by example, Burnside hospital, which is a private entity. Are those private hospitals incorporated bodies?

Mr PICTON: They are not incorporated hospitals under the Health Care Act. The Health Care Act only incorporates I think eight or nine local hospital networks that we have in this state—Central Adelaide, Southern Adelaide, Eyre, western, etc. Private hospitals have a separate registration process that, from my understanding, would not be covered by the member for West Torrens' amendment.

The Hon. V.A. CHAPMAN: Can I clarify—because the member has raised an important point and I think is actually speaking to a prescription model—that at the current stage, if one looks at the Criminal Law Consolidation Act regulations that deal with termination prescribed places, they include the Burnside War Memorial Hospital. They include almost every country hospital—in fact, they still have the Leigh Creek Health Service in there. I probably need to amend that at some stage.

There are pages of hospitals that are covered, both public and private. That has been the position for, presumably, 50 years. In regard to having a long talk about taking all the ones that are private hospitals out and minimising that, as I say, at the moment it seems that there is a small group in the community who choose to have a termination in one of the private hospitals that have been there and available to do this for a long time.

I think it probably requires a bit of a bigger discussion, but one of the things that has just been brought to my attention is that, those who might utilise the services of an obstetrician who does not consult in a private hospital—and obviously a lot of women use obstetricians and gynaecologists who are perhaps never expecting to have the choice of doing a termination—are going along to their obstetrician, having regular appointments, doing tests along the way and everything is going well. They are planning to have their baby at the Burnside War Memorial Hospital, and then, three months into it, horror strikes and they have to make decisions about termination.

By this amendment, are we going to be requiring that that woman can no longer, even though we have had it for 50-odd years, have access to a private hospital, if she wants to, to have the obstetrician she has had throughout that period? I think this is probably best for a bigger amount of time. If members want to have a look at the Criminal Law Consolidation (Medical Termination of Pregnancy) Regulations 2011, all the prescribed hospitals are set out in schedule 3. I would not want to cut them out.

Can I say that I am also advised that the expectation would be that, for the purpose of any regulations under any new bill, we would probably take a similar format and go through all these, assuming they still exist, although I am not sure the Leigh Creek Health Service still provides that service anymore. In any event, we would need to go through it, but frankly it covers nearly every hospital in the state. I would like to think that we are not going to restrict that at this point. It seems to have worked so far.

The Hon. A. KOUTSANTONIS: Just so that we are clear, without wanting to throw parliamentary counsel anywhere near a bus, my amendment is in relation to a proposed amendment by the Minister for Environment. This amendment is about dealing with procedures after 22 weeks and six days. What the Attorney is telling the house, which I think she has misinterpreted, is that somehow my amendment is a catch all for all abortions, including medical abortions. It is not. It is part of a series of amendments.

To read the amendment to the Attorney's amendment in full, you must read the amendment in 110(11), which is identical in all other places beneath to the amendment of the Minister for Environment. The only change that I make to his amendment is to change the definition of where a prescribed abortion can be conducted. That is my understanding of the intention of my amendment.

I do not accept what my good friend the member for Kaurna has said, although it is interesting to note that there are a vast number of places where you can get a safe, legal and rare abortion, which brings us back to the question: why are we here at all? However, given that, my amendment is to ensure that, if the Minister for Environment and Water's amendment is successful on the prescription for late-term abortions, those late-term abortions can only be conducted at public hospitals. My understanding of my amendment is that it has no impact on medical abortions or abortions before the time that the minister's amendment kicks in, or even if the Attorney-General's amendment kicks in.

I hope that is as clear as mud. This is, again, the difficulty of doing this type of legislation by a private member's bill, where we do not get the advisers. The government have the advisers, but it is a private member's bill, so it is all very complicated and difficult. We are working on the advice of parliamentary counsel. My intention is, as a prophylactic measure, that if the house approves late-term abortion, hopefully by what the Minister for Environment and Water is proposing, those procedures will only be conducted at public hospitals.

The Hon. S.C. MULLIGHAN: I have listened with interest to the questions and comments that have been put to the member for West Torrens, and I am grateful for the counsel of the member for Kaurna in furthering our understanding of what the current arrangements are. It seems to me the difficulty that some of us are having here is that we have a promise of regulations from the Attorney-General, to be made by the government, without actually seeing them and knowing definitively what will be in them. We have an assurance from the Attorney in the contribution she has just made, if I have understood it correctly, that basically a very long list of hospitals, including private hospitals, will be prescribed as ones in which these termination services can be provided, subject to the bill passing the parliament.

In practice, what is occurring at the moment is that the vast, vast majority of terminations—not quite 100 per cent but very, very close to it—are occurring in public healthcare facilities. The concern the member for Port Adelaide raises is, of course, entirely valid; that is, if we restrict it to public healthcare facilities, might we be inadvertently running the risk of leaving somebody seeking a termination in a situation where they do not have proximate access to that service, of course, inconvenienced but, more to the point, distressed and otherwise traumatised by that additional difficulty they are having in that situation?

From what I can gather from the reports that are made available publicly by SA Health, the annual abortion reporting report that is provided to the parliament, it is a very, very small number. Of the 4,400-and-something terminations which occurred in the most recent reporting period, which happens to be 2018, the number of these procedures which occurred in a private facility would almost be in single digits. Unfortunately, we are having this discussion and consideration not actually knowing which facility that might have been and exactly knowing what that number is and knowing even where that facility is. It might be a metropolitan facility. It might be quite close to a facility that is already providing this service.

I do not think it unreasonable that, in the absence of regulations, seeing in hard copy what the intention of the government is in prescribing these healthcare facilities, the member from West Torrens merely seek to retain what the current arrangements are. If it can be demonstrated by the government, if it can be demonstrated by the Attorney, that there are a number of cases and locations and situations which will be disadvantaged by that particularly and specifically, then let's hear it because the evidence and the advice that we have before us to date does not suggest that.

On the other hand, what we do have is the risk, getting back to what the member for West Torrens tells us, that we are introducing a profit motive in the provision of these services should future medical practitioners seek to operate clinics, for example, where these services will be provided. You only need to listen to FIVEaa in the morning on the way in to hear advertisements from private medical clinics touting for business: 'Don't go to a private hospital. Don't go to a public hospital. Instead, if something happens to you on the weekend, come and see us and you'll be seen far more quickly and it will be cheaper than a private hospital alternative.'

That is the concern. We can see in the provision of other medical services this sort of behaviour is happening already. We are not seeking to limit what is currently happening. We are just seeking to maintain, effectively, the current arrangements. In that regard, I think it is entirely appropriate, it risks nothing, it disadvantages no-one to accept the member for West Torrens' amendment to the first amendment filed by the Attorney.

The Hon. A. KOUTSANTONIS: I will just refer members, who I know are probably very interested in this, to the 'South Australia law practice review reform abortion', page 188, Part 9: Facilities, The Current Position. I happy to table it, if necessary, if I am asked by a member. I quote:

The current law in South Australia requires any abortion to be carried out at a 'prescribed hospital'. The list of prescribed hospitals in which abortion procedures can be undertaken is set out in Schedule 3 of the Criminal Law Consolidation (Medical Termination of Pregnancy) Regulations 2011 (SA). However, many of the prescribed hospitals listed in the Regulations are no longer in operation, or no longer have the clinical staff or facilities to undertake abortion procedures in accordance with SA Health guidelines, either medical, surgical or both.

I think it goes a long way to what the point is: most of the services are already conducted at public hospitals.

The CHAIR: Member for West Torrens, you indicated then that the act uses the term 'prescribed hospital'; is that right?

The Hon. A. KOUTSANTONIS: Yes.

The CHAIR: Attorney.

The Hon. V.A. CHAPMAN: I think he is really directing that to me, sir. I am happy to answer it as best I can. I am not sure what he is quoting from.

The Hon. A. Koutsantonis interjecting:

The Hon. V.A. CHAPMAN: Yes. I have listed and, in fact, I think I identified one which I think is precisely the point: the Leigh Creek Health Service I am almost certain does not provide this service. I was up there recently and, really, most of the town has gone. There are probably ones here that are not operational, many more than that. I do not take any dispute with that, but that does not mean that the ones that are listed here that are in the private sector are all suddenly dropped off the list.

This is a prescription process. It is in the regulations. There may be some that are no longer actually providing the service and are still published in the regulations. But, really, I think you are asking, member for West Torrens, to have it incorporated under the health act definition so that any private hospital could not be able to provide this service. I am pretty sure I have that right. What I am indicating, just to cover the matter for the member for Lee, is that it is the expectation that when we do the regulations for this we go through that list and obviously, as I have said, take out the ones that are no longer providing the service and identify them.

I think the key to the gatekeeper here is a prescription because I am starting to hear other members say, 'Well, how do we stop somebody just setting up a facility to do terminations?' Let's assume that it is the will of somebody to do that; they still have to be prescribed. There still has to be a process they have to go through to be able to get on the list. I certainly have not heard of any complaint about any of these services, which I am assuming have been in these regulations at least since 2011 and probably for 50 years—for those who are that old. I hope that gives some reassurance.

The CHAIR: We will go to the member for Hurtle Vale.

Ms COOK: Thank you very much. My question is to the member for West Torrens. You mentioned just before when you were clarifying your moving of your amendment that your intent was that this amendment would only preclude people who are pregnant with a gestational period of more than 22 plus six—so later term—from accessing abortion services within the private hospital sector.

However, are you absolutely positive that your amendment does not preclude services, such as a very worthy service that has run for many years within the private sector, such as at Burnside War Memorial Hospital, from operating? Given the framing of your argument, are you alleging that a hospital such as the Burnside War Memorial Hospital would then participate in profiteering?

The Hon. A. KOUTSANTONIS: I am not making any accusation about any private hospital. I have not done so and I would not do so. I do not know where that has come from. I do note what the 'South Australia law practice review reform abortion' document that has been published says on page 188. I am sure the member has already read this, but I understand that the majority of the hospitals that offer these services already are public. The intention of the amendment is to be taken into consideration with Minister Speirs' amendment.

Ms Cook: But does it?

The Hon. A. KOUTSANTONIS: That was the drafting instruction to parliamentary counsel. Again, I am not trying to hoodwink any members into secretly banning abortion through my amendment. If the amendment that Minister Speirs moves is successful, the definition of where that procedure can be conducted is only at public hospitals. I make no attack on any private hospital whatsoever.

Mr COWDREY: I am simply after the Attorney's view as to whether the amendment to the amendment made by the member for West Torrens does apply just simply to gestational limits of 22 plus six onwards. If she could provide that answer to the house, I think that would be helpful for many of us.

The Hon. V.A. CHAPMAN: The amendments that are being discussed later on in this debate will relate to after 22 weeks and six days, as I understand it. I cannot say I am certain about the member for West Torrens' amendments, but I am talking about the minister's amendments. At present, the facilities that are listed under the Criminal Law Consolidation Act that are allowed to do this are allowed up to 28 weeks and then cut off. Of course, they were established at a time when we did not have medical.

At the moment, women can have access and do have access and will be allowed to continue to have access up to nine weeks to have the medical process. After that nine weeks—to either 22 weeks and six days or whatever we are going to be dealing with a bit later on in the debate—if they need a surgical procedure, I think the effect of the amendment to the amendment will only affect after the 22 weeks and six days.

My point, in short, is that if we have somebody who has gone along for 22 weeks, and they have actually had the obstetrician at St Andrew's Hospital or Burnside War Memorial Hospital, or whichever of these hospitals, and they are then told, 'You can't have that. You have to go to the Women's and Children's Hospital for this procedure,' I think that would be really unfair, even though apparently only 0.05 per cent of abortions are currently done in a hospital outside the public sector.

The CHAIR: Supplementary, member for Colton.

Mr COWDREY: Is there a view as to how many post 22½ weeks now are conducted outside the public system?

The Hon. V.A. CHAPMAN: I do not know the answer to that, but I have made that inquiry. At the moment, in the late terms that we have under the current law, there were five last year or thereabouts.

Mr KNOLL: Just for the benefit of the house in trying to actually answer, I think everyone is just trying to understand if this applies to 22 weeks and six days and beyond. If we look at the original bill the Attorney has put forth, there is no reference to paragraph (c) in clause 6 that deals with a prescribed hospital. There is no reference to a prescribed hospital in the current clause 6 as it stands.

What the member for West Torrens is doing is putting in a definition for 'prescribed hospital' at clause 3. In a future amendment by the Minister for Environment and Water, there is a paragraph (c) that refers to a termination being performed at a prescribed hospital, but that is there under clause 6, which only deals with terminations by a medical practitioner from 22 weeks and six days and onwards.

The Hon. S.J.R. PATTERSON: I will just direct this to the Attorney. In the existing Criminal Law Consolidation Act, I think section 82A(1) actually states:

…the termination of the pregnancy is carried out in a hospital, or a hospital of a class, declared by regulation…

That is how we have the regulations: 'These are the hospitals.' If you can just assist me with this. In the Termination of Pregnancy Bill, you have defined hospitals and private hospitals, but where is the mechanism to say in the regulations which hospitals are allowed? It does not say in the Termination of Pregnancy Bill, 'These hospitals are where it can occur by regulation.' So it is a mechanism in the legislation, in the regulations. Could you just talk me through that—or does just regulation apply?

The Hon. V.A. CHAPMAN: In short, I think the answer to that is yes. On the advice I have, if the Termination of Pregnancy Bill becomes an act, there are regulations to be done and within those regulations will be provision for prescribed hospitals. What is before us now is to provide an amendment to have a prescribed hospital for the purpose of dealing with late terms. The amendment to the amendment says, 'For that purpose, I want to exclude the private hospitals.'

In short, from my perspective, that is probably restrictive without requirement, in that sense and for the reasons that it might effect. As I have also said, it is not one that is going to completely deny an opportunity for that to occur, in the sense of having access to the public sector. If members are unable to pull it up electronically, it is schedule 3. It is a very long list. I am advised, again by the Attorney-General's Department advisers, that the expectation is that the draft of the bill, which I have committed will be public, is to provide for the hospital facilities that would provide that service to be in the regulations, just as they are now and I assume have been since at least 2011.

The committee divided on the amendment to the amendment:

Ayes 18

Noes 28

Majority 10

AYES
Bedford, F.E. 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. Koutsantonis, A. (teller) Mullighan, S.C.
Murray, S. Pederick, A.S. Piccolo, A.
Speirs, D.J. Tarzia, V.A. van Holst Pellekaan, D.C.
NOES
Basham, D.K.B. 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.
Malinauskas, P. Marshall, S.S. McBride, N.
Michaels, A. Odenwalder, L.K. Patterson, S.J.R.
Picton, C.J. Pisoni, D.G. Power, C.
Sanderson, R. Stinson, J.M. Szakacs, J.K.
Teague, J.B. Whetstone, T.J. Wingard, C.L.
Wortley, D.

Amendment to the amendment thus negatived.

The CHAIR: This now brings the committee back to the amendment standing in the name of the Attorney-General. Is there any further discussion or are there any questions? Does the member for Schubert have a question?

Mr KNOLL: Just a point of clarification, Mr Chair. With the member for West Torrens' amendment being lost, do we now move to amendment No. 1 [Speirs-3] on the same clause?

The CHAIR: No, we now go back to the amendment standing in the Attorney's name, amendment No. 1 to clause 3, which reads:

prescribed hospital means a hospital, or hospital of a class, prescribed by the regulations;

Amendment carried.

The CHAIR: The member for Florey has a question.

Ms BEDFORD: This goes back to the question I asked at the wrong spot, which is why we do not have an interpretation of 'medically appropriate'.

The Hon. V.A. CHAPMAN: There is not a definition of 'medically appropriate', but the application and the guides to go with it and what needs to be considered are all set out in clause 6. I am sure the member has read it, but I particularly draw your attention to the obligation for when there is a consideration of whether a termination is medically appropriate. At present, subclause (2) provides:

(2) In considering whether a termination is medically appropriate, a medical practitioner must consider—

(a) all relevant medical circumstances; and

(b) the professional standards and guidelines that apply to the medical practitioner in relation to the performance of the termination.

I think that I have canvassed it, but if I have not, I remind the member that the late-abortion guidelines set out by the peak national body, The Royal Australian and New Zealand College of Obstetricians and Gynaecologists, has been circulated. There was a question asked by one of the members about how often it gets updated. I have not got that yet, but I have a copy of it. It has been circulated to all members in the parliament, but I am happy for anyone to have a look at a hard copy of it again.

Clause as amended passed.

Clause 4.

The Hon. A. KOUTSANTONIS: Could the minister explain the necessity of this clause?

The Hon. V.A. CHAPMAN: This provision, I am advised, is to clarify that this legislation, which is the new standalone provision medical model just for terminations, operates within the umbrella of a number of other laws and that includes the Consent to Medical Treatment and Palliative Care Act 1995. To give an example that I have just been given, that law still applies in respect, say, of it being necessary to have a patient's informed consent in relation to a procedure, and so that is still an obligation under this model.

We do not have to replicate it all into this bill. It sits within the envelope of other laws that still apply in relation to any other medical procedure. As it has turned out, in this area we are adding a very specific prescriptive provision as to how the model is to apply specifically in relation to termination of pregnancy, but that should not be seen as obliterating all of the other obligations that medical practitioners and health professionals have in any other general procedure, the most common of which and is very important is that any patient has any procedure after providing informed consent and all of the other obligations that occur in relation to, for example, a patient who cannot give consent as they are a minor or under the care of a guardianship order or something of that nature. I hope that makes it clear.

The Hon. A. KOUTSANTONIS: So, as I read it, it says:

This Act is in addition to and does not limit or derogate from the provisions of the Consent to Medical Treatment and Palliative Care Act…

Without trying to be too controversial, in the frequently asked questions circulated by the minister, under point 5, 'What happens in later term abortions?' it states:

In later term terminations, either an induction of labour or surgery will be used. If induction of labour is the chosen method of termination, the most usual outcome in this situation is that the baby will be stillborn. [In this instance] palliative care is provided. The baby is [born, it is] wrapped in a blanket and the mother is given the opportunity to hold the baby as it dies. In some instances in late termination feticide is undertaken which means the baby will be stillborn.

Is that clause 4—the palliative care act—in respect of the birth of these babies that are mentioned in your frequently asked questions?

The Hon. V.A. CHAPMAN: I will again say, if I understand the question, to put it within the envelope: this procedure and these restrictions and rules that apply to terminations do not exclude the obligations that may apply in respect of the other acts. If the circumstances in respect of the birth of a child are seeking the provisions of the palliative care laws—that is, usually to enable a medical practitioner to administer a medication which may have the consequential effect of death—then certain rules come into play with that. I have just asked the adviser.

For example, if someone has a serious condition, they are administered morphine. If it is a continuous administration, it will result in death. I cannot think of anyone in this room, including me, who has not had to deal with that issue. Whether a baby born as a consequence of a termination procedure would be eligible for consideration under the palliative care act would depend entirely on whether the medical practitioner would be seeking to actually administer a drug for that purpose—that is, for palliative care. He or she might be asked to do that.

In short, the technical answer is: this structure does not remove the entitlements and obligations that relate to the other laws but it does not necessarily mean that a baby born in a termination is going to be seeking to have its medical advisers protected, supported or restricted by that law. It may not apply; that is really my point. I would probably need an example to try to get some answers, if you have a specific question that you might want to ask. I think you are going to ask—if I am wrong, tell me—about if a baby is born as a result of a termination procedure and is born alive. If that is where we are going—

The Hon. A. KOUTSANTONIS: Yes.

The Hon. V.A. CHAPMAN: —then the question may be: do the palliative care act obligations, whatever they might be, impose an obligation to provide palliative care to the baby, which may be to nurse it through to death? I will ask. I am advised—and I will perhaps invite the member have a look in more detail at this, if he wishes—that in the Consent to Medical Treatment and Palliative Care Act 1995, under part 3, division 2, section 17(1), it sets out the procedure that is to apply for the care of people who are dying: 'A medical practitioner responsible for the treatment or care of a patient in the terminal phase of a terminal illness.' It may be the case that a baby is born who has a condition that is going to cause the loss of the baby. The act then sets out a procedure that is to occur in relation to the consent.

It is the advice that I have received that this procedure does not translate to the situation that you have described, that is, with a baby, and so in a way it is not available for that purpose. Obviously, we are talking about a situation where we already know that some children are born, independent of termination procedures, who sadly die—infant mortality—within hours or days.

The process of what happens in the care of that baby from the time it is born to the time it might pass I imagine is one that is worked out with the neonate specialists and the parents of that baby. I do not have any contemporary knowledge of that. I was briefed on it a number of years ago, but I have not had advice on what the current process is. Clearly, the baby cannot consent, but this type of legislation is really set up for someone who is capable of giving that consent, I think, or is authorised to give that consent.

I invite the member to have a look at it; in short, it seems to set out a process designed to protect the civil liability of the doctor who might administer a medication—for example, for the treatment of pain—but clearly knows that the patient is going to die. I am happy to acknowledge that I have been in a situation where my own husband had morphine and the doctor gave the advice that we could start giving morphine treatment to make sure that he was not suffering but he would die. That is the brutal reality of that.

In that instance, yes, I gave consent, and I understood fully that there was no repercussion for the doctor on that. I could not go back to complain later and say, 'You didn't tell me that he would only last a few hours,' or whatever. That is what this whole consent to medical treatment and palliative care is designed to do: to set up a structure so that everyone knows what they can do in that situation and what protections there are—one thing that is certain at the end, of course, is that there is going to be a death—and that is designed to do that.

I am advised that the other issue is that the perinatal guidelines apparently suggest (I do not know this but I am advised) that palliative care be given as needed. I am advised that is the contemporary position.

The Hon. A. KOUTSANTONIS: On that last point, the neonatal palliative care guidelines are prescriptive about palliative care being offered to babies born alive during a termination procedure.

The Hon. V.A. CHAPMAN: All I am given here is that perinatal guidelines suggest palliative care to be given as needed. The only experience I have had of this, and it was about 20 years ago, is when a neonatal practitioner advised me that when a baby is born and they are in a state in which they are really not going to survive and they cannot be operated on—usually that means they will die under anaesthetic—they are given liquid, moisture, again assuming they can consume it but basically at least on their lips. They are wrapped, and sometimes they are offered to a parent to say goodbye and sometimes they are just left with the nursing staff for them to pass.

That is very much a generalisation, but I am assuming that is what they mean in perinatal care, where they are facing the inevitable and they do what they can to make sure that the family have what time they want with the baby. I am also advised that generally that is discussed beforehand. I imagine there would be some births even today where there would be complications in the birth and they suddenly are faced with this during the trauma of birth.

But if there are going to be some complications, often that is now known beforehand and it is discussed with the parents as to what they would like to do in the event that the expectation is that their baby is going to be born but may only live a very short time and how they might deal with that. That is a comforting thought, that a lot of these things are usually discussed beforehand, but if they are not I think they have to do the best they can. I do not think I can add anything further.

Clause passed.

Clause 5.

The CHAIR: In relation to clause 5, we are going to be dealing with amendments from the member for Schubert. I advise members that the amendments in the name of the member for Schubert are all substantially the same—that is, to replace the word 'person' with the word 'woman'. Therefore, should the member for Schubert's amendment No. 1 be negatived, I do not intend to put the balance of the member for Schubert's amendments on sheet 110(4) to the vote, as the committee will already have voted on this proposal and not agreed to it. Let's see how we go.

Mr KNOLL: I move:

Amendment No 1 [Knoll–1]—

Page 4, line 4 [clause 5(1)]—Delete 'person' and substitute 'woman'

In researching this bill over the past few weeks and looking through the bill it reminded me of a debate that this chamber had back in 2016 on the Statutes Amendment (Gender Identity and Equity) Bill, which substantially dealt with the same issue. At that time, this chamber voted to reject a change to the definition of 'pregnant woman' on the following bases.

At that time, we were dealing with the intersection of biological sex and gender and working out where it was appropriate for legislation to reflect the biological sex of a person and where it was more appropriate that the more fluid concept of gender was more appropriate to be put in place. The debate at that time very much went along the lines that to be pregnant is fundamental biologically to being a woman. I cannot speak for women here, except for the ones who have very strongly put their positions to me in the last few weeks, who think that being pregnant is fundamental to what it means to be a woman.

The idea that you could be not a woman and be pregnant was inconceivable. In fact, much of the impetus for my moving these amendments has come from the women I have spoken to over the past few weeks who felt quite offended. I can only reiterate what they said to me, and that is very much that their pride, their passion, their experiences around pregnancy, birth and motherhood make them proud. It is an experience that I will never get to go through, but one which is intrinsic to what it means to be a woman. If you are capable of getting pregnant from a biological standpoint, you have female sex organs and you biologically are a woman. I think it is important that our legislation very much reflects that.

The many women who have brought this up with me, and also the women I speak to in my life when it comes to dealing with these issues, have all said that changing this language away from being a 'pregnant woman' is something that they do not want to see. I have been listening carefully during the course of this debate and the first four clauses. I am struggling to think of where somebody has not used language that reflects the language that I seek to put back into this bill, references to women and mothers, babies and fathers. Even when we are debating this bill, we are using language that refers to a woman's biology.

I would like to draw the committee's attention to it being quite serendipitous that over the past couple of days there have been media stories around an Australian National University policy document that seeks to change a whole series of language to more gender-neutral terms, things such as chest milk instead of breastmilk, birthing parent or non-birthing parent, and a whole series of changes to the way that the ANU would like their staff to refer to people and actions and things in relation to pregnancy and birth. It has been met with almost universal condemnation by the broader community.

I will reference a story in The Advertiser over the last 48 hours where, helpfully, they put a poll onto their online story asking whether staff at unis in South Australia should be made to change common English terms to be more gender inclusive. At the stage, that I took this screenshot, it had 2,965 votes and 99 per cent of people said that it was a step too far.

Nothing in this amendment will change the way that care is given to people. Indeed, the current act quite clearly refers to pregnant women. There have been no concerns raised that there are people who will not be able to get care under the current regime. I think that if we are going to make legislation, that legislation should be based as much is possible on biological fact as distinct from the more fluid concept of gender. That was certainly the view of this chamber back in 2016. It is the view of the many people who have put their views to me over the past few weeks in relation to this. It is the view of the vast majority of people who have engaged with stories in relation to the ANU over the past 48 hours, and I am hopeful that it is the view of this chamber going forward.

Ms COOK: I would like to ask the member for Schubert whether he consulted at all with anybody or took into consideration the views and values and realities of people who are intersex in relation to pregnancy. Is he aware of the vulnerability level of people who are intersex in relation to rape and their lack of capacity to access appropriate contraception at times? What would this do to people who are intersex in relation to accessing services that are not descriptive against them?

Mr KNOLL: Absolutely nothing. This change will have absolutely no practical effect of changing the care that people receive. It does not deal with contraception. That is something that is outside the scope of what we are dealing with here today. Again, it reflects what the vast majority of South Australians would consider to be right and appropriate. I am standing here not on behalf of myself, but on behalf of the many women with whom I have spoken. They are the ones saying that this is a change that they would like to see because it is intrinsic to them: what it means to be a woman.

The Hon. V.A. CHAPMAN: I do not doubt for one moment that anyone reading our laws would say that a reference to a pregnant person would obviously be a woman. That would be the general expectation of most people reading our laws. The member's indication here saying, 'I have local people who take the view that as women they should be recognised as women,' and so I perfectly understand it. I remember we had this discussion back in 2016 in one of the parcels of legislation in which we were trying to be non-gender specific at the time, from memory, so I do understand that.

Use of this language is not in any way to be politically correct, incorrect or anything else. It is actually designed because under our Acts Interpretation Act, a woman is identified as obviously including—and I just want to be clear about this—a person who identifies as a woman. Within our own legal structure now, we have a system where a woman is a person who is female or it can include this other group. I know we had a discussion way back in 2016 about a person who might change their identification. Born female, they then wish to be acknowledged as a man at a later date but still retain the capacity to bear a child.

If somebody in that situation is then in a relationship where ultimately there is a pregnancy, how does that male access services for the purposes of being in a maternity ward with women? These are all the practical things that apparently happen, so I just make the point that this is not designed to be offensive to women who want to be known as women when they are pregnant. It is certainly not designed to be something that is to be exclusionary, but we have developed our legislation drafting consistent with the Acts Interpretation Act to try to be gender non-specific and consistent with that this has developed.

It will not make a scrap of difference to the applicability of the legislation if it is the will of the parliament to have an exception in relation to women in this category—of course, I am at the will of the parliament—but it is of concern to those in the community who have probably fought for a long time to have recognition. In the days of Diana Laidlaw, it was to insist that the whole of the Constitution of South Australia be rewritten so that it says 'he' or 'she'—even Tom Playford had a crack at that back in 1959—but it can be offensive within the envelope of the contemporary prescriptions that we have.

We have developed our law to try to accommodate that and to deal with all those in the community, including intersex, who change their identity, and that is the purpose of this. Its purpose is not to in any way offend or exclude those women. I think probably most of us here in the house who are women who have had children would be treated as women, as pregnant people. It is certainly not designed to be offensive, but I am in the hands of the parliament as to what you want to do with it.

Ms BEDFORD: Could I ask the Attorney how much consultation or if any consultation took place around this change in terminology?

The Hon. V.A. CHAPMAN: I am not changing any. It is not my amendment.

The CHAIR: It is the member for Schubert's amendment.

Ms BEDFORD: You have just taken a straw poll; is that correct?

Mr KNOLL: Again, in relation to the changes that I put forth to bring it back to what the current act says, no. It was just in relation to the people who have spoken to me but also with reference to the debate that this chamber previously had.

Ms BEDFORD: My question actually is to the Attorney. Was there any consultation about using the word 'people'?

The Hon. V.A. CHAPMAN: Just to be clear, then, yes. The way that this is drafted is purely to be consistent with our Acts Interpretation Act and consistent with modern drafting practices as a result of that being developed. Certainly, I acknowledge that in 2016, when we were dealing with affecting a number of acts, an amendment was made to accommodate this wording as per the member for Schubert's recommendation, but this is in no way intended—our drafting is just to be consistent with what the rules are, so I will not be supporting the amendment.

I think we do need to have some consistency, but I also point out that if it is the will of the parliament to treat pregnant women only as women and not countenance the possibility of others who might feel hurt or offended by this then so be it. It will not actually impact the application of the act but it may considerably hurt a number of people who have fought a long time to have non gender-specific language.

Dr CLOSE: I was just going to say to the member that he is saying—in all honesty, I am sure—that he has had women say to him that they feel offended and would prefer to be known of as women when they are engaging in the health law in various forms. I would just like to put on record that I am a woman and I am very much a person and feel no sense of offence in being referred to as a person.

The CHAIR: The member for Hammond.

Mr PEDERICK: Thank you, Mr Chair.

Members interjecting:

The CHAIR: Order!

Ms Hildyard: Remember?

Mr PEDERICK: I remember and I note the interjection from the member for Reynell. We did have a bit of to and fro on this in 2016. I just want to reflect on that debate briefly. I remember going to the briefing, because the member for Reynell was leading the legislation that we were amending at the time. Before coming in here to debate and before going to the briefing, I was probably going to make a very short contribution and deal with it that way, but then I went to the briefing and basically, I will be frank, I was afraid and I was scared.

Members interjecting:

Mr PEDERICK: No, I said five years ago in the speech I made in regard to the legislation we were dealing with at the time that I think it demeans women and I think women having the right to give birth is a beautiful thing. They are biologically the only ones who can give birth. I fully support the member for Schubert moving these amendments. If we are going to keep consistency, as the Attorney-General suggested, I think we should go with the consistency that we had five years ago.

In regard to whether we are going to offend a few people, I do note that—I cannot remember the state by state breakdown of men who identified as women who gave birth—in the records I found from either 2014 or 2015, there were 54 men across Australia who identified as—

Mr Szakacs interjecting:

Mr PEDERICK: You can make a contribution, member for Cheltenham. There were 54 men across Australia who identified as women. I think it is going to cause far more offence to the probably 13 million-plus women in this country—and I am going on the country's population statistics now—than if people think we are going to offend a few people who in my belief are women no matter how they identify.

Mr SZAKACS: I will oppose this amendment. I reflect on the member for Light's words yesterday. He was quite eloquent and succinct in his consideration that in debate there are those of us who seek to argue or prosecute and those of us who wish to persuade. I would like to think that I have spent a lot of my professional career, both in this place and before I was elected, acting to persuade. That is not what I am going to do now.

I rise to reflect on some of the argument that was put by the member for Schubert yesterday in his second reading contribution in pursuit of this amendment. The member for Schubert may be an expert on women. He must have more expertise than those of us seeking to read the SALRI report because there has not been consultation. One thing that I will rise on, and I do so on behalf of the women who have contacted me—women in my family, women I care for—is to repudiate in the strongest and unequivocal way his distillation of a woman's worth about whether she gestates or not.

Somewhere in this argument, we have chased the absurd to change the goalposts to oppose what I have already put on the record is what I consider to be reasonable, properly articulated reform, but to pursue an argument that a woman defines and finds her worth because of her ability to gestate should offend all of us in this place. It should offend every person who miscarries, it should offend every person who chooses not to have a child, it should offend every person who is unable to conceive naturally and it should offend that a man like the member for Schubert gets up and contributes in this way. You are a shame.

Mr KNOLL: I was close to suggesting that the member is imputing improper motive. Yesterday, in second reading contributions on all sides of this debate there was a strong desire to see this evening's proceedings happen in a way that is respectful and also deals with the issue at hand, as opposed to attacking an individual. I stand here not as a man; I stand here as a representative of the people who elected me, over half of whom are women.

Mr Szakacs interjecting:

The CHAIR: Order! Member for Cheltenham, you have had your contribution. The member for Schubert has the call.

Mr KNOLL: Each of us comes to this place representing all those people, and we naturally have to make laws about things that do not personally affect us. We do it every single day in this chamber—every single day in this chamber—and if we distil debates down to whether or not you personally have experience in relation to an issue in order for you to have validity and are able to have an opinion or a vote on something, then we will not be able to discuss issues freely.

I come at this from a very simple place, that is, to represent those opinions that have been brought to me. But I think the back and forth that we have just had speaks to the difficulty that chambers like this have when it comes to deciding who is going to be more offended. If we sit here and play outrage politics so that the group who are most outraged should be the group who ultimately have what they want end up in legislation, it makes this issue very difficult for us to grapple with.

As I said at the start of my contribution, and where the debate went in 2016 for the purposes of this, it is why who is going to be more offended is a very difficult proposition for us to put, notwithstanding the member for Hammond's contribution that there are 13 million women and far fewer intersex people who would potentially be on the other side of that. Again, there is absolutely no way for us to balance that.

It is why at the opening of my contribution there was the fact that the bill and the language we use should be based as much as possible on fact and biology, as opposed to anything else. So, when it comes to the giving and taking of offence, we are dealing in biology and fact, as opposed to public opinion or concepts that are more fluid and changing.

Sitting suspended from 18:00 to 19:30.

The CHAIR: Welcome to back to committee in the House of Assembly. The member for Schubert is on his feet.

Mr KNOLL: Just to wrap up, I do hope that the balance of this debate tonight continues in the way in which it started, and that comments made by many members across all sides are made with a degree of civility, if not dispassion. I would hate for any member of this place to feel they are bullied into making a decision one way the other.

I commend this amendment to the committee on the basis that it is something the vast majority of South Australians would understand to be common sense, and again, on behalf of those women who have expressed very strongly to me their desire for this amendment to be successful.

The committee divided on the amendment:

Ayes 12

Noes 32

Majority 20

AYES
Cregan, D. Duluk, S. Ellis, F.J.
Knoll, S.K. (teller) Koutsantonis, A. Murray, S.
Patterson, S.J.R. Pederick, A.S. 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. Brock, G.G.
Brown, M.E. Chapman, V.A. (teller) Close, S.E.
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.
Mullighan, S.C. Odenwalder, L.K. Piccolo, A.
Picton, C.J. Pisoni, D.G. Power, C.
Stinson, J.M. Szakacs, J.K. Teague, J.B.
Whetstone, T.J. Wortley, D.

Amendment thus negatived; clause passed.

Clause 6.

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

Amendment No 2 [AG–1]—

Page 4, lines 22 to 25 [clause 6(1)(a) and (b)]—Delete paragraphs (a) and (b) and substitute:

(a) the medical practitioner considers that, in all the circumstances—

(i) the termination is necessary to save the life of the pregnant person or save another foetus; or

(ii) the continuance of the pregnancy would involve significant risk of injury to the physical or mental health of the pregnant person; or

(iii) there is a case, or significant risk, of serious foetal anomalies associated with the pregnancy; and

(b) a second medical practitioner is consulted and that practitioner considers that, in all the circumstances—

(i) the termination is necessary to save the life of the pregnant person or save another foetus; or

(ii) the continuance of the pregnancy would involve significant risk of injury to the physical or mental health of the pregnant person; or

(iii) there is a case, or significant risk, of serious foetal anomalies associated with the pregnancy; and

(c) the termination is performed at a prescribed hospital.

This is an amendment to clause 6. As I indicated earlier to the committee, having considered all the submissions made by members in the debate yesterday and at that stage identified a number of amendments that were already filed, consideration would need to be given to how we might add some level of prescription into the matters that a medical practitioner must consider when dealing with a post 22 weeks six days termination decision.

I will briefly speak to the three areas. One is to save the life of the pregnant person or another foetus. I do not think that needs explanation, but of course I am more than happy to answer questions. It is the situation that we currently have, to the extent that, as I understand the submissions made, if we are to have termination post 22 weeks six days, this is something that I think has universal acceptance and needs to be continued. As I say, I am happy to answer any questions on it.

I will just quickly skip to paragraph (a)(iii), which details a proposal for where there is significant risk of a serious foetal abnormality associated with the pregnancy. Can I say first in relation to this matter that I think there is a general acknowledgement that there needs to be some element of choice for families when they are faced with this very difficult situation. I would say this particularly when they are dealing with it after a period of months, when I am sure families are looking forward to a happy, healthy baby. You have all heard submissions in relation to the challenges and the distress when this sort of decision is brought upon families in this situation.

Perhaps the difference between this and other aspects of other amendments foreshadowed relate to this risk being associated with a foetal abnormality that is ultimately likely to result in the death of the baby after it is born. That is a qualification I have not included in this clause. There are situations, clearly, where there is a diagnosis, distressing as it might be, that there may be some serious abnormality, but it may mean that the baby when born is able to live, and actually live even a normal life span, but with severe abnormality.

It is my personal view that this is a difficult decision, but it ought to be allowed in a circumstance where parents do make the decision that they are not able to continue with the pregnancy and take on the responsibility in light of that significant challenge they will face in raising a child with a disability. To be frank, I have also considered it in the context of the matters that have been raised with me and probably with others, that in those circumstances—that is, when a baby is not wanted to be progressed—they really should proceed to have the baby and offer it for adoption.

We are talking here about a child that is knowingly going to be born with significant disability. The prospects, frankly, of them being able to find a family that is able to accommodate the responsibility in those circumstances I think is probably unrealistic. Even facing most significant abnormality, that does not mean that parents will not choose to progress with the baby and have the baby and take up the challenge. That is a decision to be respected and, as a community, I think we should certainly continue to support them not just in a health sense or a welfare sense but to support them as a family to give that child the best life it can have.

But where they may have responsibilities to other children and are not able to undertake that, the disability may be so severe that it would utterly frustrate the capacity of the family to do that. Again, families are in different circumstances as to whether they can provide adequate care. I think that should be a decision for the family, as tough as it is, so it needs to be considered in light of not overburdening this aspect with that qualification, which I see as foreshadowed in other amendments.

The third area, which is really in (a)(ii), is for the continuance of a pregnancy that involves significant risk of injury to the physical or mental health of the pregnant person. Can I say, firstly, that this clause does not include psychosocial factors. It is something that is within the guidelines of the profession to consider in lots of procedures for which they give advice or assessment and/or treatment, but in this instance the physical and mental health I suggest would be adequate. The reason I say that is, firstly, we need to have it to encompass issues like rape and incest. As I have said before, we all have a pretty clear understanding of what that is about.

How do we deal with those that fall outside of strict rape but are still an assault circumstance resulting in a pregnancy, which is not rape, i.e. intercourse with a minor under the age of 14 years? I use the example of the 13 year old that has been traversed in another setting in this parliament in recent time. It was determined that that child was able to have a termination. The factors that are raised in relation to rape also include the level at which there would be a threshold of proof. Do you need to have a conviction? In this regard, can I say that the classic example is in a domestic violence situation, where a woman may be raped, then she acts and ultimately kills the perpetrator.

There are lots of issues around that, but in respect of her being left pregnant in that circumstance, where her partner or husband is dead, there is obviously a circumstance where she does not want, and had not wanted, the advance that resulted in the pregnancy, and there is no capacity to prosecute or have a conviction. The principal witness—one of them—is dead. I say to members that I pose these examples of exactly why going down the line of trying to be prescriptive is our attempt as legislators to say that we want to make it clear to those who are going to carry out or supervise or enforce these laws what we have in mind, and I respect that. The practicality, though, is that unfortunately we do come across these other difficult decisions.

The third is in relation to intellectual disability, and we have heard of that in the example Ms Bonaros recounted to the parliament that she was aware of, and the circumstances there. Any reasonable person would accept that is a really tragic circumstance, and we have to be able to deal with it. I am advised that there are other examples, and I would like to just explain them to you. All of us need to be aware of these, and my advisers here have some more.

Firstly, can I thank this excellent lady who is sitting next to me who is, of course, in our health department. She has been able to identify a couple of areas that may assist members. In respect of mental health—even people who have an existing mental health condition, for example, psychosis and severe depression—I am advised that even the advent of pregnancy can exacerbate these conditions.

Psychosis, I am advised, can present a circumstance where the expectant mother does not understand that she is pregnant and then is suddenly thrust into this late-term period. Of course, the bill I am presenting to you makes it a bit harder timewise, because I am bringing back from 28 weeks under the current legal limit to 22 weeks, six days. So everyone concerned in these circumstances is under even more time pressure. I do not apologise for that. I think we need to recognise that foetal viability is now at that end of the spectrum, and we need to recognise that, but it does introduce an extra pressure.

The issue in relation to addiction in respect of the mental health space, particularly drug and alcohol, is one that I am very concerned about. We do have in South Australia, I think still, a situation where approximately a baby a week is born with an addiction as a result of the mother taking drugs, sometimes at a very serious level, and for which they then need to have immediate treatment often by injections and over a sustained period—several months I understand. Certainly with heroin addiction, as I recall, a newborn baby needs an injection every six hours. It can be even more often or less, but it is a situation that is obviously a legacy of an addiction of the mother, which has a direct physical translation to the baby.

We as a community deal with that to the extent that sometimes these babies are fostered out and the foster family assist in the medical treatment for them. Where possible, obviously they grow to healthy babies. You would have to be living under a mushroom not to appreciate the significance of foetal alcohol syndrome, which we now know of and have to deal with for children who are facing this.

Again, I think these are examples in the mental health sphere. Not every one of you will agree that these are a sufficient threshold to enable a medical team to work with a mother and make these difficult decisions, but I think we need to allow for that at the severe end of these; that is, the most acute circumstances that need our assistance.

On the physical side, I am also advised that there are often foetal congenital abnormalities. In other words, they are not fatal but there is a congenital abnormality in relation to the mother. Cancer, obstetric conditions such as pre-eclampsia, renal dysfunction, these may not be terminal in the mother but they could severely affect her capacity and health. They may kill her but they also may not. This is obviously an area where families in this situation have to assess the physical circumstance of the mother. She is not going to die as a certainty but she is going to be under severe physical impairment and/or injury if she continues with the pregnancy.

I know nothing about any of these things as a trained person and there may be some in our parliament here who are familiar with these or who have seen them in the extreme. I can only convey to you that if I or a member of my family was in a circumstance where they were facing the severe and acute outcomes and legacies of these symptoms, I would want to at least be able to discuss it, or my family be able to discuss it, with medical advisers and have the informed consent to proceed with a termination or, with that advice and support, progress with the pregnancy. That is the choice that I am asking to be included.

The second medical practitioner must also comply with this and the termination is to be performed at a prescribed hospital. I do not think I need to explain that further. We are clearly saying that it is a procedure that must be done by medical practitioners, approved and recommended by two medical practitioners, and which must be done in a prescribed hospital. This is something that requires special advice.

I am advised, and I am sure others would have been during the consultation, that when it comes to late-term terminations there is often more than just a doctor sitting around the table: the obstetrician, sometimes paediatric services come in and other areas of specialty. If the mother, for example, has a pre-existing illness or disability, then there are advisers in relation to her circumstances or her health, which may be her cancer specialist or anaesthetist.

There can be lots of people, not the least of which might be psychiatric support for those who may need assistance to work through this. I am advised that this is something that is much more common and that there is a general team that comes together to support the mother and father to make a decision one way or the other.

Can I say that I have not written these, but I have asked for there to be consideration of all the matters that have been taken into account where I think there has been a very clear indication from the members, and also an acknowledgment that there are other areas, such as incest and rape, that we cannot just ignore. We have to be able to deal with that.

I thank the member for Black for acknowledging in further amendments that are foreshadowed by him that these are important areas, but they are not exhaustive. To this degree, I think it is important that, whilst we are giving very clear instructions to the profession and they are bound in the areas that I have already said in relation to their national guidelines, these are the best words.

They are not my words. It is not a question of whether this is Chapman's rule or whether it is any other member's rule. I have tried to ask parliamentary counsel to draft something that is considerate of the issues that have been raised to best deal with this.

There is another thing I should bring to members' attention. I think members probably would have received a letter from the AMA, as I did—it must have come in this morning; I seem to have had a bit of correspondence lately—of today's date. They have identified their concern about what is workable, and they have expressed their views to all of you, I am sure.

Whilst they have a strong preference for both the AMA and RANZCOG—and, of course, many of you have had meetings with Associate Professor Rosalie Grivell, who has provided answers to questions from all members during this debate—they do not see this as the preferred option, but they acknowledge, as they say, 'the genuine and deeply-felt thoughts of members of the House of Assembly in last night's deliberation'. They tell us they understand and respect that and then they set out the basis upon which it is necessary.

Again, I can only endorse what has been said. I suppose the clear warning they are giving us is to say, 'If you are too prescriptive, we are not going to be able to accommodate cases that you have already acknowledged are a challenge,' of which I think there is a sympathetic understanding that parents ought to be able to make a decision on that and have the choice in respect of that.

For that reason, I present this amendment as capturing your expressed wish, acknowledging that my colleague the member for Black has already started to crystallise this in a number of amendments, and then a final amendment which captures an important list, but in my view it is not sufficient. On that basis, I present this amendment to the committee.

The Hon. A. KOUTSANTONIS: I have a brief opening statement before I ask my question, if I may.

The CHAIR: Certainly. You have 15 minutes, member for West Torrens.

The Hon. A. KOUTSANTONIS: Thank you very much. When this bill first came to the upper house in another place, it was presented to the other place as a body of work based on a long review, which I quoted earlier, by the law review process, and the legislation was based on that. We have heard much discussion about the consideration of the bill that was presented in the upper house.

I also point out to the committee that the health minister resides in the upper house. Throughout that entire process, the health minister resisted all attempts to amend this very section—all attempts—that any amendment was inappropriate, and this was the basis of a long, considered process. Then this morning at, I do not know, 10 o'clock, amendments were lodged by the Attorney-General. We have been told to accept these changes.

The Hon. V.A. Chapman: What's your point?

The Hon. A. KOUTSANTONIS: My point is that time and time again we are being told that this entire legislation is on the basis of a long-term considered process through legal reform after 50 years of a certain process and it should be unamended, let alone the other accusations like, 'How dare anyone amend this.' This is not from the Attorney-General but from public conversations about, 'No-one shall amend this bill,' and here we are—

Mr Knoll: Name them.

The Hon. A. KOUTSANTONIS: I'm far too polite. My mother raised me well.

An honourable member: Are you sure?

The Hon. A. KOUTSANTONIS: Careful, I will cop anything else but my mother. I am very interested in how this amendment came about. My first question to the Attorney-General is: has the AMA consulted its members about this amendment? I ask this because I received a glowing letter of endorsement from the Australian Medical Association about the benefits of this amendment. I would love to know if, from the moment it was conceived by the Attorney-General and parliamentary counsel, that amendment went out to all their members and they were able to give their detailed feedback. I suspect the answer would be that, no, they were not—nor were obstetricians, nor were other medical professionals.

This seems to me as if there is a little bit of politics being inserted into this considered legal process of 50 years of reform that is long overdue and that somehow the Attorney-General is now amending this private member's bill in government time with government advisers—but they are acting independently, of course—to do something differently.

From my independent reading of what the Attorney-General was saying, it seems to me that she wants the house to accept the criteria used in the existing act under the Criminal Law Consolidation Act for pre-viable babies and post-viable babies; that is, the criteria for assessing whether or not a pregnancy can be terminated pre viability—before 28 weeks—are to be applied in the new legislation at 22 weeks and six days going forward.

It seems to me that this is a further liberalisation of what the Attorney-General is attempting to do disguised as making it stricter. I am sorry, Attorney. If this amendment is part of the long thought-out process, it seems awfully rushed to me. If the Attorney-General is serious about this, perhaps she will adjourn the debate, let the AMA consult on it, let obstetricians have their say, and let the profession that we are relying on to give us the information about whether these terminations should proceed or not give us some feedback because all I have is Chris Moy and the Attorney-General—that is it, no-one else.

So either the coalition for abortion reform is right and their long-term, long thought-out, long legal review of this process gave us a bill that should be unamended throughout the entire both stages of parliament or the Attorney is right and the amendment at the last minute is the right thing to do without the medical profession being appropriately consulted, because we are handing them the ultimate decision-making. We are telling them. We are being less prescriptive and giving them the ability to make the decision on this.

Attorney, I am sorry for my caution on your amendment. I apologise for the shortness in my speech, but, quite frankly, this seems rushed. This seems to me to be as if it is panic by some proponents who fear that the vote might have been getting a little bit close. That is not the way to make legislation, especially legislation as impactful as this, which impacts the lives of the unborn, so, Attorney, I am sorry.

My first question is: can the Attorney-General assure the house that the AMA has consulted with its membership in full and that its membership have had time to respond to the Attorney-General's amendments and give us thoughtful written feedback as to the impacts of this amendment?

The Hon. V.A. CHAPMAN: Firstly, can I say that the AMA and the royal college have been consulted and active in the development of legislation in all jurisdictions of Australia over a number of years in the advances of similar legislation. To perhaps provide some comfort to the member that this is not some snap decision of the AMA just here in South Australia, this has been an area they have developed and consulted on comprehensively across the states. They have been active in the development of the law in the other states. They have been active in the development and report over a number of years to our institute, the South Australian Law Reform Institute, and they have been active in the consideration of their view during the draft.

Indeed, can I say that, as to whom they have consulted in each step, I am satisfied that they have comprehensively considered these matters. None of the matters in this section are new. The issues in relation to conscientious objection which have been raised during the course of this debate, some of those are new. In fact, even the member for West Torrens has some amendments which are novel and may well have not been necessarily raised in other jurisdictions on other legislation which covers those matters but are nevertheless somewhat more novel in this area.

I am quite satisfied that the Australian Medical Association are very clear in what their view is. In fact, they outline in the letter today, having helped go through the drafting of this during the night—sending out to relevant parties to check, the lawyers, the health professionals, etc.—as to how we might cover these other contingencies that have not been dealt with and come up with some legislation to be able to manage that. They have been vocal and active in the consideration of this throughout. Even today, they still say in their letter to every one of us:

In the letter, I reinforced that the Bill removes the unfair burden of criminality from women who undergo abortions. I also noted that the Bill sets out a new, higher bar for medical practitioners in assessing cases of later-term abortion, by requiring them to assess if abortion is medically appropriate, and therefore aligning this with the high standards of health law under which doctors must act in Australia.

I write to you again, this time alongside the Chair of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG) (SA/NT), Associate Professor Rosalie Grivell, after having heard the genuine and deeply felt thoughts of Members of the House of Assembly in last night's deliberation of the Bill. We both understand and respect your views and those of the communities you are elected to represent.

We therefore wish to state that it is the strong preference of both the AMA(SA) and RANZCOG that the Bill be passed unamended. However, we are of the understanding that a number of amendments to the bill have been filed, which is understandable given the nature of the debate last night.

I think they make it very clear what their preferred position is, and they tell us all again this morning, even after they have heard all the debate, but with that in mind they then go on to set out why it is important not to be too prescriptive but to recognise that some of the parameters that have been showing up in the development of the debate will produce inequity, unfairness and, I think, an unsatisfactory burden on prospective parents.

They set it out in the letter. I will not read it all again. You have all got it. They tell us why it is unworkable and too prescriptive or too restrictive. Whilst they have a general view in relation to moving from a criminal to a health model—and perhaps some would see that in a purist form— these are people who have about four layers of obligation and capacity.

They are medically trained, obviously, and have fellowships of the college; they have multidisciplinary teams involved within the hospital guidelines; they are bound by the policy and guidelines of RANZCOG, and I have referred to those in detail; and they also are under legislation including the Health Practitioner Regulation National Law, and the national body, the national regulator, has power to take away their right to practise and fine them. So this is not a situation where they are without a parameter of legislated responsibility.

Some will say we need to be really much more prescriptive in explaining to the doctors and directing the doctors that this is the intent of the parliament. I understand that, I have listened to the debate, I have heard what you have said and so I have asked the experts to go away and come up with something within the envelope.

Be under no illusion, member for West Torrens: the AMA have a view. It is the view that they have always expressed in these debates. They maintain an advisory role, I suppose, in warning us of how we might cause more damage when we are trying to minimise harm. I think they should be commended for trying to do that if we are going to go down this line of prescription.

I think it is clear that the parliament wants some tighter prescription around what is to be done. I hear that, I am sure they have, and they have said, 'We still think this is not the appropriate way but, if you do it, please be alert to these other factors.' I think I have covered what they have said, probably much more eloquently than I did, in the matters that I have raised today. I will just check if there is anything else. I am getting a nod, so I hope that has answered the question.

The Hon. A. KOUTSANTONIS: Not entirely, unfortunately, Attorney-General. I understand that the AMA leadership have been consulted. I understand that they saw the amendment in advance. My question was: was their membership—the people in the field, the people who are working in obstetrics, the people who are working delivering these services—consulted?

It seems to me that what happened, from the Attorney's own words throughout the debate yesterday, was she formed the view that the parliament, this house, wanted more prescription, despite the same amendments being moved in the upper house and the health minister rejecting each and every one of them as unnecessary, that the bill had been formulated on the base of a long-term legal review done by considered people who had come up with a series of bills and a series of amendments. Here they were, being presented to the parliament complete, after a long, thoughtful process.

Now we are told, after one day's debate, that the Attorney-General sensed the mood of the room for more prescription and the AMA, without going to their thousands of members, have come up with a series of amendments that we are meant to accept as definitive from the AMA. I am sorry, Attorney-General, I do not accept that. I do not accept it because I bet as much as I have in my pocket right now compared with what you have in your pocket right now that a majority of doctors have not seen the amendment that you have proposed to the house today. They may have been emailed it, it may be sitting in an inbox somewhere, but they have not been spoken to about it.

It is completely different. It is a different test. Despite what the AMA say, 'It's not perfect, but we will accept it,' I want to know what obstetricians think. I think the house wants to know what obstetricians think about this new test. Again, I will go back to the beginning. From my reading of this, the Attorney-General and its drafters have picked up what is in the Criminal Law Consolidation Act, despite all of us supporting decriminalisation—all of us. I do not know anyone in this house who is opposing decriminalisation of abortion.

Despite it coming up again and again in the discussion, I support decriminalisation of abortion. It should not be considered in the Criminal Law Consolidation Act. It should absolutely be in the Health Care Act. This is a healthcare provision, I agree. But the provisions that you are now proposing to the house liberalise abortion for late term, applying a test that was designed for pre-viability. I want to know how it is the Attorney can claim that the AMA and its members are satisfied that this is an appropriate course of action simply through a letter from its chief executive, its president or its spokesperson.

It is not feasible to believe that they have been consulted appropriately. This is politics inserting itself into this process after we have been told for so long that it should not be. That is why we should not be accepting any amendments, but here we are. So, Attorney, again, very specifically: when did your office send the AMA a copy of the draft of the amendment you have presented here to parliament today?

The Hon. V.A. CHAPMAN: I will get the time for that because I know this has been worked on overnight. But can I just clarify perhaps some misunderstanding that the member for West Torrens is acting under. The terms of prescription, if you like, that we are proposing in this bill are not new to the AMA. They have all been canvassed in other states and in the other place, during the course of this inquiry with the institute, here in the parliament. These are not new issues.

I am satisfied when they tell me that these issues have been canvassed with their members that they understand what is there, and I will tell you why: these are all things that are in their guidelines. These are all things that they already sign up to. They are saying that the danger of going into a prescription is that we end up with medical amateurs like us having to then rely on different cases which we hear about which we think are so unfair. So this is not new; this is the lifeblood of the people who work in this field.

As to the obstetricians, Professor Jodie Dodd is the chair of the abortion reporting committee which reports to our parliament—the last one I think was last year in 2020—either every year or two years and gives us all the data in relation to how this process occurs. If anyone has not seen this report, which comes into our parliament every year; I assume it has been happening since 1969. I have not been here that long; some might think it seems that long.

But I make the point that these people are within a very small group of obstetricians. I am advised this. Not all obstetricians do this work. It is a very small group, probably less than half a dozen in South Australia, and then there are some other training doctors coming through. But those who practise in this area in the specialty within obstetrics I can count on these hands, so they are very mindful of these issues. They live by these within their own guidelines.

The parliament is asking to prescribe things that they want to be satisfied—we all want to be satisfied—that they are going to take into account. They say they do these things anyway. In fact, if you listen to Dr Chris Moy, he says what is happening with this bill is that they are crystallising in place what we are already doing. To ask them in the legislation, for us—and you can call it politics or anything else. I do not accept for one moment that the AMA are in any way playing politics with this. They have had a consistent view through all of these debates in every state that has dealt with them over a number of years and this is not new.

To see it with my name on the top of it as the Attorney-General, instead of someone else's or in some other state, it is all the same. That is why I am confident that, when they viewed it to check whether there was anything different in there or some new thing in there that was saying that people with red hair could not have abortions or something else, they are satisfied that they are able to speak for their organisation which has lived and breathed this issue over many years. I will find out the time that it was distributed to them. It was at approximately 8am this morning. It was all the health department last night because we started on this after the conclusion of the debate last night.

Mr KNOLL: To try to give further clarification to the house because, like the member for West Torrens, I am trying to understand the chronology of how we have got to where we are. For the benefit of members, what we had yesterday in the second reading debate was concern by a reasonable number, if not potentially a majority of members, about late-term abortions, post 22 weeks and six days, and a desire to see a debate as we are going to have tonight on how we look at the term 'medically appropriate' and whether or not that provides the degree of protection that many of us in this chamber would like to see.

I agree that we have had this term 'medically appropriate', something that has been discussed ad nauseam in the upper house, throughout the SALRI report and the subsequent draft bill, and then in this chamber yesterday and earlier on in the committee process through questioning by the member for Florey.

'Medically appropriate' is a new term. It is one that is difficult to define and one that does place in the hands of medical practitioners a huge degree of influence and a huge degree of discretion. There would be a question mark from this chamber as to whether or not the term 'medically appropriate' is a more liberal term or a tighter term than currently exists in the Criminal Law Consolidation Act. There is a question mark around that.

What the Attorney is seeking to do with this amendment is to take late-term abortion, as we are commonly discussing it tonight, and give it the same test that currently exists for pre 28 weeks in the Criminal Law Consolidation Act. We have not heard in this debate —or I certainly have not heard, in listening to the speeches and to the committee stage so far—the contention that, even though abortion is currently illegal, the test that exists here is overly restrictive for women to procure an abortion pre 28 weeks.

I put to this committee that the amendment the Attorney is now seeking to put forward does not tighten or allay any of the concerns that many in this chamber have about late-term abortion. It actually goes the other way. It puts us back to a test that, in my view, is more liberal than the medically appropriate test, because the medically appropriate test is something that is untested and something that, if it were to pass, would evolve over its application. Hopefully, through some of the reporting mechanisms that the member for King is amending later on, we will be able to assess that.

In my view, this does not allay any concerns. What it does is allow abortion to birth. I think that every member in this place should understand very clearly that this is not a tightening of late-term abortion, this is a liberalisation of late-term abortion that would allow abortion to birth. That is something that does not respect the wishes of a number of us who have raised concerns; in fact, it goes the other way.

Members in this house should be very clear about that. Nobody in this place should be under any illusion that if they vote for this amendment thinking it is going to allay concerns, those very difficult ethical concerns, the balance between the rights of the mother and the rights of the unborn child, that it is going to allay those concerns. In fact, it would entrench abortion to birth in a way that I do not think would allay the concerns of the many who have raised them.

Dr CLOSE: It is an interesting idea that some late amendments laid on the table are completely fine, but ones that are done by the Attorney are somehow dubious because they were rushed. I think we all ought to accept that we are dealing with a very complex issue, and we are all doing our best to land a bill that can receive majority support in this parliament, rather than casting aspersions on the timing. I believe the Attorney is making every effort to find an accommodation that delivers a majority vote for a bill that will be a matter of making progress.

My question to the Attorney is to seek to understand, with the amendment she has put forward, if her understanding is that the reason the AMA and the Royal College of Obstetricians have indicated their support is that it is substantially a fleshing out of what they understood to be medically appropriate, that it identifies the issues they would have considered under the various layers of accountability the Attorney has already described that sit around these professionals, who are well trained and who are required to act ethically and to appropriate professional standards.

In doing that, these are the considerations they would expect to undertake and, therefore, they were comfortable with medically appropriate and, having received this list, would see that as being compatible with what they understand to be their professional obligations. Would that be a reasonable characterisation of why the AMA and the Royal College of Obstetricians have been able, in a fairly fast turnaround, to agree to these, and also to identify that subsequent amendments that have been tabled but have not yet been debated may be regarded as discriminatory and unworkable?

The Hon. V.A. CHAPMAN: I will not foreshadow the discussion on other amendments, but in relation to this aspect I think the member is absolutely right. In this gain, in addition to the agencies that have been referred to, namely, the AMA and the royal college, and confirmation of the people in the health department, one of whom gives us this report each year, I also have the benefit of Professor Katina D'Onise, who is head of Wellbeing SA, in the department, and is able to give us all the legal aspects, but also I have a team back here. In fact, Emily is the team, the genius at the back, and all the people who work with her, some of whom are sitting up there. Professor Katina D'Onise is the person I most rely on for the specific advice on what we are doing here.

As she said to me a little earlier, 'Whatever you prescribe here, for doctors it still has to be medically appropriate.' I think the member touched on this to say that there are a number of other standards they have to comply with, consistent with not only their training, registration and regulators but also their own national guidelines, under which they can be struck off and/or fined and face the consequence of losing all those years of investment in their education and training and income opportunity, I suppose. In any event, there is a lot to lose if they do not.

I am not suggesting for one moment that all doctors do the right thing just in case they get punished if they do not. I do not suppose most of them would be going into that profession unless they had some desire to help people through these health decisions, and give them better lives and better choices. That is their professional obligation. To ask them to endorse prescription that they think is not necessary, they will still say, 'We still have to act where it is medically appropriate. That is a standard.' You can put it in the legislation. They say they do it anyway. But we will still have to do it. This is not something different. They have not been given some relaxation here; they still have a standard anyway, they say.

I hear endlessly, 'We agree, Vickie: decriminalisation should come out of the Criminal Law Consolidation Act. We should be regulated as a medical model,' and we have every genius in the health department and every other area explain to us, work out, what is the best health model, and then we are trying to tie behind its back the hands of the profession, we are asking to do this job. I get a little bit concerned about whether people are completely genuine in saying, 'We agree with the decriminalisation.'

Where we are at risk is if we were a parliament that simply abolished the Criminal Law Consolidation Act and then just let things go and did not have a medical model at all. We could have done that. We could have just said, 'Let's just repeal all the divisions that produce a sanction—concealment of birth, mothers taking toxic chemicals to kill their baby, aiding and abetting a criminal. These are all the ones we are getting rid of.'

The Hon. A. Koutsantonis: Come on!

The Hon. V.A. CHAPMAN: We are getting rid of them, right?

The Hon. A. Koutsantonis interjecting:

The Hon. V.A. CHAPMAN: We are doing that. We are getting rid of them. If you read what we are getting rid of, you will see that we are getting rid of all those. What we are doing in decriminalising and setting up a health model is designed to give us a new level of protection.

What I think would be a risk, and therefore I would never propose it and I am pleased that the institute did not go down this path, is to simply decriminalise and then do nothing and leave it up to everyone else—mums, dads and everyone else—to go and do what they wish, just like they are going to get a measles injection. That would be a risk.

When people say to me, 'We agree: let's get rid of the criminal sanctions. Let's not have threats of gaol to doctors, mothers or people who might aid that; let's get rid of that,' we have to come up with a model. We have relied on the health professionals, the department and others who are regulators and experts in this, and some of you have some level of expertise. That is great; you will understand it better than I do. If we are going to go to a health model, we have to listen to that profession.

That is why it has been very necessary, I think, for them to be in step with what we are doing. They do not agree with everything we are talking about down here, clearly. They have told us that in a letter this morning, and we do need to respect that. We will not change their mind on that, but I am reassured when I hear the professor sitting next to me say that whatever is here, we will still have a standard of what is medically appropriate. That is something that they have to line up with the assessment. I am comforted by that, and I would hope members are.

The CHAIR: I am going to go to the Minister for Environment, who I believe has an amendment to the amendment.

The Hon. D.J. SPEIRS: I do, but I was not going to move that immediately. I was going to ask the Attorney-General some questions, if that is appropriate.

The CHAIR: You move your amendment when you are ready, Minister for Environment.

The Hon. D.J. SPEIRS: Thank you, Chair. There is no doubt that we are now moving into probably one of the most challenging parts of this bill. The clauses in this section are particularly difficult. There are many things we need to wrestle with. I have made very clear my concerns about this legislation. I did so in my second reading speech in no uncertain terms. I said that I would move a range of amendments with the hope that the house could support some of them to get this legislation into a place where I felt, as a local member and as an individual exercising my conscience, I could support the third reading. Really, for me, the crux of that support lies in amending the sections that are before us now.

As members of parliament, I think we have a couple of approaches to take as we analyse these pieces of law. Firstly, we have to look at the science. We have to speak to the experts. We should listen to bodies that represent particular sectors. We have government departments—Wellbeing SA, the Department for Health and Wellbeing, the Attorney-General's Department—and we should absolutely take all of that on board, but equally we represent people in communities who have values shaped by their experiences, and that is the case for us as individuals as well.

As laypeople in this parliament, we should listen to the experts, but we also have to reflect the values of South Australians. I have been consulting many people on this legislation—the people in the community that I speak to and the people who have reached out to me—and the sentiment that I am picking up from the people of South Australia is that they want a more prescriptive test around the pathway to late-term abortion.

There is no doubt that there should be exceptions, and the amendments that I have canvassed in recent weeks, and in a much more detailed way in recent days, contain those exceptions. They look at medical emergencies. They look at risk to the life of the mother or another unborn child. In more recent discussions, I have also worked through an amendment that would look at cases of incest and rape as well.

One of the challenges that we now are confronted with in this legislation is a real shift, I think—almost a philosophical shift—from a position and a statement and a term around 'medically appropriate', which was subject to very significant debate and questioning in the Legislative Council. We now find ourselves looking at an amendment from the Attorney-General that on the face of it shifts this legislation more in line with the amendments that I have publicly canvassed and filed with this house.

However, I do not think we are actually achieving this at all through the Attorney-General's amendment. I do not think this is shifting the proposed legislation closer to the protections that I sought to achieve through my amendment. On the face of it, it looks like it is structured in a similar fashion, if you look at particularly (a)(ii):

(ii) the continuance of the pregnancy would involve significant risk of injury to the physical or mental health of the pregnant person…

Paragraph (b)(ii) is simply a repeat of that in relation to the use of the second medical practitioner. For me, this is actually as open, if not much more open, than the use of the term 'medically appropriate'.

I can understand the use of the term 'risk of injury to the physical health'. I think I can work through that, and I can see how that could be limited, but my challenge is the use of the term 'mental health'. I think it creates a gateway so wide and so subjective that it does not attain the protections and restrictions I have sought in the amendments I have before this place. I will be seeking to amend this shortly based on my real concern around the term 'mental health' in the Attorney-General's amendment.

My question to the Attorney-General is quite simple in the first instance. If a pregnant person sought an abortion and used the mental health clause when they were pregnant with a baby that was at 35 weeks of gestation, and they presented to two doctors seeking an abortion through the mental health clause, would an otherwise healthy baby be permitted to be aborted under the use of the 'mental health' term if that pregnant person said they were suffering from a mental health issue as a result of their pregnancy?

The CHAIR: Minister, I might call the Attorney and ask you to repeat that question succinctly, please.

The Hon. D.J. SPEIRS: I aim this question to be quite simple. My question to the Attorney-General is: under proposed new paragraphs (a)(ii) or (b)(ii) of the Attorney's amendment, which use the term 'mental health', if a pregnant person presented to two medical practitioners and that pregnant person was pregnant with an unborn baby at 35 weeks of gestation and used the 'mental health' term as a reason for obtaining that abortion, and the baby was otherwise healthy but the mother claimed to have mental health issues as a result of being pregnant or otherwise, would that mental health issue be a ground for aborting that baby, otherwise healthy, at 35 weeks of gestation?

The Hon. V.A. CHAPMAN: In short, no. I can confidently say that because the question suggests this is a presentation whereby the mother is claiming she has a mental health problem as though she has assessed that. I think one forgets here that it is the doctors. The mother can have a choice to make a decision to seek a termination as an option. What is necessary, even under the bill as it is, let alone with all these other things, is that two doctors have to assess that there is a mental health problem—they are the doctors; they are the ones who have to make that assessment—and that it is medically appropriate. If the features that the member has raised, that is, she is 35 weeks pregnant—

The Hon. A. Koutsantonis: We're taking 'medically appropriate' out. We're taking that out.

The CHAIR: Order! Continue, Attorney.

The Hon. V.A. CHAPMAN: They have to make that assessment as to whether it is medically appropriate. It is not a question of going along and saying, 'I want an abortion. I know I have just changed my mind.' At present, two doctors are required to undertake that, not to mention they need a whole team of people, who can of course have conscientious objections if they do not want to do it, who have to come together to actually procure that.

This is why it is so important that we understand the significance of going from a criminal model, where the stick has been a threat of conviction and imprisonment of a mother or a doctor or someone who assists them, to a medical model in which we are requiring the assessment to be undertaken to determine significant risks, foetal abnormality, mental health of the patient, likely risk of a life-threatening condition to the mother and serious harm or injury. These are all things that the mother does not assess; the doctors have to assess them. I think that is the key difference, that is, the idea that it is a choice of the mother that they just simply line up and require this service. The doctors have to make the assessment.

Certainly, we have read this report. To be fair, we have consulted lots more than any of the people in our electorate. The level of consultation on this over a number of years, in the development of this report and the consultation process, enables them to look at that and examine, firstly, should it be decriminalised? Yes. Should we stop there? No. Should we move to a health model? Yes.

Let's look at the options as to how we might set that health model up as a standalone piece of legislation to set out the rules and regulations that go with that, and that includes two doctors in a prescribed hospital determining that it is medically appropriate and taking into account a number of things, to which we are adding another three.

I want to assure the member, and all the members, that we have gone to a medical model. In a way, sometimes that makes us feel probably a little bit nervous, but the reassurance I have and that I hope others will have is that it is not just because a whole lot of academics, doctors and lawyers and everyone else has had a look at that in this report, as comprehensive as it might be, it is also because we are asking the medical profession to sign up to this and to support our people through this in a way that gives us the reassurance and the knowledge that the people whom we have all been meeting with have been all over the country discussing this issue.

They have been to many parliaments other than ours to help people like us make an informed, responsible decision that enables us to get out of the shadow, I suggest, of criminal sanction to a 21st century medical model with people who are expert and trained to not only give advice but to do the assessments.

This is not just a sign up, line up, pick a product off the shelf situation; this is a prescriptive set of circumstances. The fundamental thing here for the advocates in relation to the profession, the health department and the like is that you have set for us a higher barrier, even here in South Australia, to say that it cannot just be appropriate in all the circumstances but has to be medically appropriate. You are making us do that. They are happy to sign up to that. They were not too happy about the 22 weeks and six days; they thought we should leave it up to them. Well, I did not think that, but we make those other decisions.

I think the parliament here has said that there are some other things to do. Saying that a consideration by a doctor that the mental health of the patient is a factor they can take into account and should assess means that they have to assess it. It does not mean that somebody can go up and say, 'I am suicidal,' or, 'I am schizophrenic,' or, 'I have a psychotic condition,' or, 'I will perish if I am forced to have this baby.' That is not what this is.

I want to reassure members and the member for Black, because he asked this question, that a person who simply goes up and says, 'I want to have an abortion of my 34-week-old foetus. I have a mental health situation'—it could be for whatever reason—'and will I get that from the two doctors?' will get an answer of no.

The Hon. S.C. MULLIGHAN: It should be apparent to all participating in and watching this debate that we are now really at the crux of this bill, in clause 6. As the member for Black, the minister, has pointed out in his previous remarks, we have now seen in a very short period a very substantial shift in the nature of this clause that is being proposed by the Attorney.

Despite the time and effort that some of us put into canvassing this in the beginning of this committee stage before the dinner break, talking about the concept of what is medically appropriate, that is proposed now to be gone and to be replaced with a more prescriptive test in clause 6. I appreciated that the Law Reform Institute and medical representatives like the royal college and the AMA have made their submissions. I am certainly grateful for them, and I am sure many, if not all, other members are grateful for them.

As I drew members' attention to in my second reading contribution, while the Attorney in the original bill has been careful to include the term 'medically appropriate' on the advice of the Law Reform Institute, even the AMA tells us in its submission to the Law Reform Institute from June 2019, 'Abortion is an issue with complex medical, ethical, legal and social aspects.' Personally, I am grateful for the medical advice, but it is not solely a medical issue, is it? It is not a medical issue solely. According to the AMA, the body representative of doctors, it is not just a medical issue; it is a social, ethical and legal issue as well.

So I am grateful for the medical advice. I am glad that we have got that covered off in some detail, but we are left to arbitrate the remaining aspects of striking the appropriate balance in abortion law, namely, according to the AMA, those social, ethical and legal issues, which largely the bill is silent on.

It is also made much more difficult, of course, because we have all come into this debate on the basis of what is medically appropriate without even a definition of what is medically appropriate. To a layperson, to somebody who is not a doctor and not a lawyer, like me, I try to think of what medically appropriate means. If it is medical, it must be to do with the provision of medical services or advice or medical intervention. If it is appropriate, it must be fit for the circumstances in which it is being considered or provided. That is all we have got to go on. There is nothing else.

To his credit, what the member for Black has sought to do is to provide some better defined parentheses, some tighter and better defined provisions around how these services can be provided, specifically for—

The CHAIR: Member for Lee, can I just remind you—

The Hon. S.C. MULLIGHAN: That did not feel like 15 minutes.

The CHAIR: No, you are only halfway through. The Minister for Environment has not actually moved his amendments as yet. He has foreshadowed that he will.

The Hon. S.C. MULLIGHAN: I thought we were speaking to the Attorney's.

The CHAIR: You are, but of my listening to your contribution, you seem to be referring to the member's proposed amendments.

The Hon. A. Koutsantonis interjecting:

The CHAIR: That is okay. Member for Lee.

The Hon. S.C. MULLIGHAN: As usual, Chair, your lightest touch commands obedience. What we have seen is now a move from what was proposed by the Attorney and introduced into this place in the original bill with what is now proposed in terms of her amendments, if it pleases you, and that is a redrawing of clause 6, which is concerning us all quite significantly. I thought the member for Black's question was entirely legitimate and quite pointed to get to the nub of this, because the way in which the Attorney's amendment No. 2 is drawn:

(a) the medical practitioner considers that, in all the circumstances—

(i) the termination is necessary to save the life of the pregnant person or save another foetus;—

I think that is a principle which has been, if not been longstanding, the one that we all agree with or support—

or—

not 'and' but 'or'—

(ii) the continuance of the pregnancy would involve significant risk of injury to the physical or mental health of the pregnant person;

It then goes on, 'there is a case, or significant risk, of serious foetal anomalies associated with the pregnancy'. So for the member for Black to draw our attention specifically to the concept of the test of mental health injury is important and very pertinent. Bearing in mind, of course, that the way in which abortions in South Australia are reported to the parliament specifically makes mention of mental health as being one of the reasons why abortions are conducted; indeed, not only one of the reasons but the predominant reason. In fact, not just the predominant reason, the vast majority of abortions are performed, according to the annual report that we receive in this place, for mental health reasons.

I do not think it is unreasonable that the member for Black seizes on this newly introduced concept of mental health from the Attorney—the majority of cases where an abortion is performed both before 22 weeks and six days as well as potentially after—and asks whether that is now the manner in which somebody will be able to secure a late-term abortion. That is entirely pertinent.

I think the point the members for West Torrens and Black make is correct. That test of mental health, which currently seems to exist because that is how it is reported to the parliament, is now to be applied singularly—singularly, not together with other considerations but singularly—as to whether a late-term abortion is available to somebody. Nobody is jumping to the nth degree and saying that somebody is just going to wake up one day in the 34th or 35th week and have a change of mind and stroll into a clinic chewing gum and decide that they have a mental health issue and that they do not want a baby anymore when the baby growing inside them is otherwise healthy and viable.

What we are trying to do as legislators is provide some well-defined prescriptions around when this termination can be accessed. When the Attorney says, 'No, that's not the case,' I am sorry, but it seems very clear from the way in which the bill and the amendments have been provided and the evidence has been provided to us that in fact it will be. That is why there is such a concern.

I know it is a concern because despite our repeatedly being told that the bill as presented to this house must be passed without amendment, we now have a slew of amendments in an effort, it seems, to head off the member for Black in what he is proposing. I share the member for Black's concerns in this regard. I am not necessarily saying I am perfectly happy with his version of amendments, but I think what he is getting at is the real concern that we have now with what has been tabled by the Attorney, that mental health is a reason that will be able to be used to secure a late-term abortion.

The CHAIR: Which the minister, of course, has not moved yet. Deputy leader, you were seeking the call earlier.

Dr CLOSE: I seek the call. Thank you very much, sir, for the latitude you have extended to me. Did you wish to answer that question first?

The Hon. V.A. CHAPMAN: Yes, if I may, to assist the member for Lee. The actual percentage of people who after 20 weeks sought an abortion under our current law, which as you may know is up to a legal limit of 28 weeks but as a matter of practice is not done over 24 weeks, the percentage of late-term abortions under the current law for mental health reasons for women for the last recorded year (2018) was 0.9 of 1 per cent.

It is accurate to say that there is a large level of mental health being the reason in the very early stages. As you know, 90 per cent plus is now done by tablet and by medical procedure. The previous year it was 1.3 per cent of late-term terminations (after 20 weeks under the current law) and the following year it was 0.9 of 1 per cent.

Although the number may be incorrect, I appreciate that mental health is a feature. For all the reasons I have indicated, it needs to be a feature, especially if one is facing having a baby from an unwanted sexual encounter—rape or otherwise; incest, illegal or otherwise—especially where there is a capacity to impinge on the serious mental health of the mother. A mental health issue is as dangerous as a physical issue: it can kill you; it can lead to suicide.

I do not stay away from mental health. What I am comforted by is that, even in the current law, this is not just somebody coming along and saying, 'I want to have my baby at 22 weeks here under the current law because I'm unwell. I think I'm psychiatrically in need of assistance.' That is not the assessment. The taking out of 'medically appropriate' to put in the prescriptive form has been raised by the member for Black, as I say, and other members have raised it. The member for Black has translated it into amendments and wants to take out the definitional uncertainty, so to speak, of 'medically appropriate' and put in the factors that have to line up to be medically appropriate.

I can add that back in as well if you like because the doctors tell me they still have to set their own standard of what is medically appropriate. If you want to go down to the very clear areas of parameters to which we are saying this is to apply, then I do not step away one bit from saying that if that 0.9 of 1 per cent turn up in the late-term period—not 34 weeks because that is, I suggest, completely unacceptable and will not happen—if there is 0.9 of 1 per cent of those women of the five last year, and it might only be one, if they are assessed in that way then, yes, I do think they need to have the support to make that choice.

Dr CLOSE: The question of mental health appears to be vexed, and I wonder if I could ask the Attorney to reflect on a couple of issues and perhaps expound upon them. One is the interaction between how one assesses part 3, that is, the significant risk of serious foetal anomalies, and how that interacts with the mental health of a woman—i.e., a risk of a child with severe deformities might be weightier for a woman who is alone, has a low income or is otherwise encumbered in a more complex life, as opposed to a woman who is of great means, mentally robust and so on. Is there an interaction between part 2 and part 3 of that clause when the doctor is considering in all circumstances what the best approach is for that particular woman?

I would also ask you to reflect on the way in which we understand the mental health impact of rape, assault, incest. In the instance of a young person—effectively a child, a teenage girl who becomes pregnant and hides that pregnancy through shame and through denial, who is discovered to be pregnant reasonably late—is the mental health impact on her of having that child part of what you are getting at in taking account of mental health in this clause rather than simply focusing on the physical alone?

The Hon. V.A. CHAPMAN: I think the member raises a very good point. Perhaps I have been derelict in my explanation of this, as to say that when the medical practitioner is doing the assessment I suppose I have been compartmentalising it to say that it will be one of these three categories. I do not doubt there are many situations where factors in all three of these columns might apply when the medical practitioner is undertaking the assessment.

Nobody turns up with one issue. That is just not reality in the legal world or in the medical world. If we talk about a comorbidity here, we talk about myriad factors that can accumulate to the medical assessment in the end that it would be appropriate to provide the option of a termination. It may be that there is a risk of a foetal abnormality. It may be that the mental health would make it impossible for a person in her condition to be able to manage that. She may be alone or she may be poor—these were the external factors that I was referring to earlier that make it harder.

We might have in this house people who are in a more financially robust circumstance. We have support, we have capacity, we have income streams that mean we could probably handle a lot more than some others, but it is not for us to sit and compare everyone with our own circumstances. There are people out there who will come in different stages of health themselves or facing health challenges themselves, who are in a much more financially impecunious state, who do not have family support, who are not articulate and able to communicate their position or who are in a minimum level of support in the community.

They may also have addictions and other problems. How are they possibly going to deal with the distress of a child born even with foetal alcohol syndrome, which we know so much about? Perhaps any one of us with the support we all individually have would be able to cope. That is why we are moving to a health model for the medical person, the two doctors minimum in this case, to make that assessment.

I think the member makes a very good point that perhaps I should not be just compartmentalising this to say, 'It has to be one of these.' The fact is people rarely turn up with an individual issue. There is a multitude of factors to take into account to assist the mother to make a decision whether or not to have a termination or whether she has other options. This is not just a termination-only consideration.

Our medical practitioners and health professionals are there to assist women and families to make decisions with all those factors to be taken into account, which is why often around the table we keep hearing from Rosalie in particular that there are myriad different people who are there to provide an indication of what support there is, how that can be managed or what treatment can be done to facilitate their making a choice.

We would like to think that women have a choice in this situation and, if they choose, do not need to go down the termination path, even if the medical advice is to do so, and that they are entitled to say, 'No, I want to take the risk. I want to run the gauntlet though my own life might be at stake.' They should be entitled to make that decision with the informed consent in any direction they want to go.

The CHAIR: Before I call the member for Black, I am just going to remind those visitors in the public gallery and the Speaker's gallery—you are very welcome and it is nice to see you here—to keep your phones on silent, please.

The Hon. D.J. SPEIRS: I want to emphasise that at no point during my previous question about the mental health term was I attempting to trivialise the decision for people to have an abortion. I think it is too often being pushed around in the periphery of this debate that if you want to create restrictions and protections in this law, you have a bent towards thinking that people just sign up and rock up, to paraphrase the Attorney-General. I just do not think any of us here think that is the case. I do not think any of us think that late-term abortion is a trivial act that would be made by any person at all.

My next question for the Attorney-General is simply the other side of the previous question, because I remain extremely concerned about the mental health term. I would like advice not on the side of the mother claiming mental health but on the assessment from the doctors. Could a pregnancy be aborted at 35 weeks if two doctors deem a mental health threshold has been reached for an otherwise healthy unborn baby?

The Hon. V.A. CHAPMAN: On the health advice I have right here, the answer to that is no. The reason for that is that if the only factor was the mental health of the mother and she has a healthy baby—this is the scenario you are presenting—she would be capable of delivering the baby, and it would be the safest for her to deliver the baby. I do not know whether it has to be by caesarean or natural birth or whatever—generally by natural birth.

Mr ODENWALDER: I have a quick question for the Attorney, and I apologise if we have been over this. You have talked quite a lot about the medical appropriateness, and we have traversed that area quite well. You have also referred to a lot of the guidelines and professional standards that doctors and medical practitioners have to follow.

I do note that in the initial iteration of the bill, in the initial provision, consideration of the professional standards and guidelines is explicit and that in the amendment it is not. In fact, right at the beginning of your remarks you said that it does not include psychosocial reasons because that is prohibited by the guidelines and professional standards. I wonder why that insistence on recognising the professional standards and guidelines has been taken out in this amendment.

The Hon. V.A. CHAPMAN: Quite simply because we proposed a medically appropriate, comply with the guidelines approach. Clearly, the parliament was looking for some more prescription, so we have removed that and put in this. We can add that back in if you like. I am advised by the health professionals that they are still bound by those anyway, and I had them in there to try to give reassurance to the parliament.

The parliament said, 'No, we'll take those out,' because, as I said at some stage, if you take psychosocial out of the legislation, they are bound by it anyway. We will do what you want and do the prescription, and so we have done that. I do not mind; they can easily go back in.

The Hon. A. Koutsantonis interjecting:

The Hon. V.A. CHAPMAN: Well, I am just saying that the member has raised quite a legitimate question: why take them out? Only because we are now going to this more prescriptive model. They are all covered by that, and when you read them I think you will see that there are a number of these features in here that we have put in the prescription. In fact, the member for Black has put in some of his as well, and that is fine.

A factor that was taken into account in the guidelines was the psychosocial. I do not even know what that means, but that is something that was raised as a concern, and so you will see it is not in my prescriptive list. I do not think it helps us, but mental health is a clear, clinical circumstance and requires a specialist to be able to make a diagnosis, and we would expect that, of course, at the time of there being that assessment.

There is no reason that it has been removed for any mischievous purpose; it is there. I am advised that the profession is required to comply with those national standards and guidelines anyway, and I think I have repeated that several times during the course of the debate. If the member wants to add them back in as well, I am more than happy to, but in my view it will not actually resolve the concern that some members have raised, that they want to really make sure they understand what the parameters are.

It seems to me the baby has to be unwell in some way, the mother has to be unwell—and that is physical or health—and/or going to die. I think we have heard that, and that is why we have tried to be prescriptive. I have taken advice from parliamentary counsel on how that should best be done, and we are coming to some landing on how that is. The parliament will ultimately make a decision on it, but I asked for their advice and that is the result of it.

Dr CLOSE: Interestingly, I was going to ask about the various guidelines and professional requirements that sit around doctors in these situations, but not from the perspective of asking why they were not referred to anymore. I share the Attorney's view that they exist regardless, and if they are in or out as references it does not change the reality for a doctor that they exist and that they must be obedient to them or operate within them.

On that front, I was going to ask for a little bit more detail. The member for Black, the Minister for Environment, gave an example of a very late-term woman—35 weeks is very close to being regarded as full term—who presents, presumably in this scenario for the first time, with mental health issues to the doctors who have to make this decision. Can we give some detail about the kinds of considerations that those doctors would have to go through? What guidelines would they be consulting? What is the ethical framework within which they would be operating?

I appreciate that you have gone to the end of the story and said that in that instance there would not be an abortion offered, in the very simplified example given by the Minister for Environment and Water, but if you could flesh out a little what those considerations ought to be and what they are required by law to be by their professional standards by virtue of remaining medical practitioners. What are they required to explore before making that decision?

The Hon. V.A. CHAPMAN: I hope I do justice to the professor here, but my understanding in respect of that is—let's just deal with the 35 weeks—there is a healthy baby and a mental health claim on the part of the mother. Even if it is assessed that she has a mental health condition, I am advised that, in that scenario, the biggest other factor would be the viability of the foetus. I am advised that, if the baby was at 23 weeks, there is still a risk of death or a high level of support being required and/or disability. At 30 weeks—I think even from 29 weeks—the diagnosis on viability is likely to be that the baby will survive and that it will be with minimal support. So that viability of the foetus is the most significant other fact in that scenario.

I am further advised that, even if you swapped out mental health for cancer of the mother as the debilitating feature for her, viability would still be the most significant feature. So, essentially, if that is going to be the feature, then really from 29 weeks on, if the baby is already healthy in the scenario, the expectation from the medical profession is that the baby will be born alive and with minimal need of support. That is the feature I would encourage, again in more detail as the member has asked, to support the contention that it would not be a recommendation of termination in the test case given by the member for Black. The mother would be assisted to have the baby and obviously then supported in whatever other decision she might make.

The Hon. C.L. WINGARD: I would like to just first acknowledge the amendments to this bill and appreciate that they do tighten the bill, which does give me some comfort as we go forward. This is also to acknowledge that we have very similar amendments on the table to address, tabled by I think the member for West Torrens and the Minister for Environment and Water, the member for Black, and as we work our way through that I look forward to the debate.

Clearly the parameters around saving the life of a pregnant person and saving the foetus I think are very self-explanatory, and I am sure there are quite a few in this chamber who agree with those principles as well as significant injury. It is and does tend to be the mental health aspect that people are asking questions about, and I would like to pose a question about that as well.

I think, Attorney, you have outlined that this is not a case where if someone has a bit of depression or the blues or they are feeling a bit down on a day; that is not how this applies. Can I ask if you can give an anecdote of how mental health would apply and give an example in that context to make that a little bit clearer, please?

The Hon. V.A. CHAPMAN: Of course, the professor has given me several. One, for example, would be in a circumstance where the expectant mother had a severe addiction; there may be already some foetal abnormality, or certainly small or less viable, etc. It may be embraced in other circumstances of not being in a financial position, maybe homeless, etc. but severe addiction together with some foetal abnormality, bearing in mind that there is a psychosis problem there would be a very difficult situation.

The other is in relation to the mental health of a child when they are pregnant. Again, we have been familiar with two 13-year-old girls who have been pregnant. One has had a termination, we know, and one, from the sentencing remarks, had the baby and it has been given up for adoption. I do not even know all the details of these. I have read the sentencing remarks, of course, but obviously each of these girls was in different circumstances, and they were supported through different options.

I am not here to make any judgement on either, but what the professor tells me is that whilst children who bear children may be quite physically robust themselves and actually able to deliver children—not always ideally; it might even be frightening for a child but nevertheless they are physically able to have the baby without it being a threat to their own life—there are mental implications with that.

There is even the capacity to terminate or not and/or to have the child and then be able to cope with raising another child. Again, I do not doubt that the social factors around that might help to guide, to give more options. So, if she had other family—a supportive partner and/or other family—that would give that support, terrific, and that might give her some other options, but sadly some of those children do not.

There are two examples: psychosis, immaturity of the mother. I think I mentioned before a situation of severe addiction. Severe depression I did mention before. I do not have an immediate example of that, but one can imagine that if there is a person who has a significant depressive disorder and is suffering severe depression that their capacity to have the baby might not be diminished but their capacity to support a baby and remain reasonably competent themselves to do that and to look after themselves may be severely at risk. I hope they are suitable examples to give all members some appreciation of how difficult this is.

Again, people usually do not turn up with just one issue. It has to be looked at in the whole. But I think it is fair to say that it is not unreasonable to expect that if somebody has a supportive family, some financial support, a home and they are healthy in themselves, they have the capacity to look after a baby that has been diagnosed as having a significant foetal abnormality. It might be much easier for that mother and/or father and their supportive family to make the decision to bring that child into the world and to provide support for them. It may be an impossible dream for other mothers.

I think we have to rely on the support team, but this will give the criteria that they are to take into account—it may be multiple. I hope that members are satisfied by the very telling information from the professor that a healthy baby at 34 weeks will not be terminated by a doctor, under any of the rules they are bound by in the circumstance that has been given, just because a mother turns up and says, 'Look, I'm sick of this idea; I don't want this baby.' It will not happen.

Ms COOK: Every day, members in this place, our families, our friends and our constituents go to doctors for help, and they do so for significant medical issues: psychiatric disorders, surgical problems, a whole range of things. We trust doctors and health professionals to make the right judgement call on things we do. In fact, we spent the whole of last year saying, 'Trust the medical advice.' Women, men and their families all put their trust in medical professionals to make the decisions with them with all the information available.

Is it even remotely possible that the bill in its original form or with this amendment would lead to what has been called abortion to birth, which is the assumption that healthy or otherwise foetuses at or near term would be killed then birthed and discarded? That is the information that I have been sent by the truckload for the last months. It is the information that people are spreading in this community.

What are the consequences of medical professionals—health professionals, nurses, doctors and otherwise—who would then participate in what has been called an abortion to birth cascade from the opening up of late-term abortion? All this that we are debating, is this not the reason why we have gone to SALRI for expert advice to move this into health legislation, so that it all connects? I know there are a few questions in there and I have been a bit tricky.

The Hon. V.A. CHAPMAN: I think whilst SALRI did a good job in canvassing all these issues and trying to come up with the best model, as I say, even I did not accept all their recommendations. But I think we should be grateful for the comprehensive work that has been done. There are always new things that come about, whether it is in this debate in this house or in discussions that we have had throughout.

If I could go to the last first, what is the consequence under the new health model for doctors who do not do the right thing, that is, they fail in some way to comply with this structure if it were to pass? The answer to that is that under the medical model they would be under the reaction from AHPRA, which is the national body, for up to dismissal, and AHPRA has, as the national body, the right to fine. I have seen $20,000 in some of the proposed amendments here; in fact, they can fine unlimited. But they may not; that is a discretion they have.

Firstly, it is seven years' imprisonment for a non-health professional to do these processes. It is seven years' imprisonment for someone who tries to coerce someone either to have a termination or not to have a termination. That is for a doctor or anyone. But the big stick for the health professionals is that they face the risk of lifetime exclusion from the profession that they are trained to do.

You can say, 'That is not harsh enough.' Some people might say that. Some people might say we still should put them in gaol. I hear on the one hand everyone saying, 'We agree. This is the 21st century. We do need to move into a medical model.' We have had all the medical experts have a look at it, not just doctors but all the other health administrators and all the people in the health department. The professor here is way more qualified than I am, obviously.

These people have identified what is the real stick here. The real stick here is their professional reputational damage, loss of employment and to be struck from the register of the profession that they have clearly worked hard to get to, and this is for any of the health professionals, specialists, nurse practitioners, etc. I think that is important. If they break the law in other criminal ways, just like lawyers they can get struck off too if they do the wrong thing. But if they steal money out of the trust account or break the law, they can also go to gaol.

So if a doctor breaks this regime and has to come before AHPRA and may end up with a big fine and no qualification and no income, it may well be that they have broken other laws on the way, so that would have to be considered in the circumstance as to whether there was some other assault or trespass or whatever that they might be liable for. Without going into that, we are trying to say, 'What is the structure around them for the purposes of that?' I think there was another question as to the complexity of the procedure and the multidiscipline.

Ms Cook: About the notion of abortion to birth.

The Hon. V.A. CHAPMAN: Yes. I hope with the examples that the professor has provided to the parliament that the concept of having healthy babies aborted—clearly, after even 29 weeks in the concept, the fact is that it is safer for the mother to have the baby and it is very viable. This viability issue comes more to the forefront and it gives those options.

Bear in mind that she explains to me that a late-term abortion, I assume at this stage anywhere up to about 20 to 24 weeks, is quite a complicated procedure and requires a whole team of people. As she advises, it is usually in a major tertiary hospital because of the significance of the surgical intervention and the requirement to have a whole lot of other people around, and after the surgery obviously because that is a procedure of repair and also redeveloping some mental resilience to get through all that.

The Hon. A. KOUTSANTONIS: In my final contribution on this amendment to this clause, I think it is important to point out the statistics. I am advised by my colleague the member for Lee that in the reported statistics of terminations of pregnancies of a gestation of more than 20 weeks, of the 92 that were performed, 37 were for mental health considerations—40 per cent. That is separate from congenital anomalies and separate from specified medical conditions of the mother. That is a staggering statistic. I do not profess to understand the individual diagnosis of each individual case of mental health diagnosis by their medical practitioner. I do not know.

An honourable member interjecting:

The Hon. A. KOUTSANTONIS: Yes, exactly. How many of those were rapes? How many were incest? But the one stat that is not here is: of those 37, how many of those babies were perfectly healthy? That is what vexes us in this parliament, and that is the problem I have with the Attorney's discussion.

The Attorney was asked by the minister: if someone is diagnosed with a mental health issue and is pregnant at a gestation of 35 weeks, can they receive an abortion if they are diagnosed by two doctors? The answer was categorically no. Therefore, there is uniformity of medical opinion on that diagnosis: if it is 35 weeks with a mental health condition, you cannot have an abortion. Why do we not put it in the bill, if it is uniform? It was a very, very clear, sharp, fast 'no'.

If we can make these diagnoses that quickly—35 weeks, perfectly healthy baby, mental health diagnosis, no, safer to deliver the baby—why do we not put it in the bill? Why not put it in law and preserve those babies' lives? Again, this is the anomaly we are being asked to consider, the obvious contradictions to what we are being told. This is a very, very messy piece of legislation and that is making it very, very hard for people of good faith to try to come to a considered decision.

When you hear things like that—and it is obvious from what the Attorney has just told the parliament, knowing the consequences of misleading the parliament—that a person who is 35 weeks pregnant with a perfectly healthy baby cannot seek an abortion, a termination, for mental health reasons, let's put it in the bill. That was the advice the parliament received.

That is why I will be supporting Minister Speirs' amendment, and that is why I think there are gaping holes in this. That is why amendments on the run, like the Attorney's, are fraught with risk, given what we have heard over the last couple of weeks about the importance of this bill being unamended.

The CHAIR: The Minister for Environment has not yet moved his amendments, although we have been talking about them for quite some time. Minister, are you planning to move your amendment—

The Hon. D.J. SPEIRS: I am planning to do it now.

The CHAIR: Take a seat for a minute, minister. Member for Badcoe you have the call. You were looking for the call?

Ms STINSON: I was. I was going to ask a question of the Attorney. I am happy to wait if there is some procedural—

The CHAIR: I am sure the Minister for Environment will not mind waiting a little bit longer.

Ms STINSON: I appreciate that, sir. My question is to the Attorney-General. I particularly want to understand a little more about how significant risk is defined, and how that would operate. For example, I know there are circumstances where a doctor might provide a woman with advice not that something will absolutely happen or that a condition will absolutely develop, but that there is a risk. I am not sure if they can put a number on it, but a 10 per cent or a 50 per cent or an 80 per cent risk that a child may be born with certain anomalies or health issues.

I am wondering what scope is taken into account, I suppose, with significant risk and how medical professionals actually assess what a significant risk is in the context of serious foetal anomalies, especially considering that those anomalies may not be able to be fully diagnosed until the pregnancy develops over some period of time. Can the Attorney shed some additional light on how that might be interpreted in practice?

The Hon. V.A. CHAPMAN: I have all the legal information here on that and I am happy to read it out. The last point made is that the circumstances may change during the pregnancy to change the assessment by the medical professionals as to what the risk is or what the development of, say, a congenital disability for the foetus is. I suppose that one of the really tragic circumstances of this is that sometimes it is very difficult to make that assessment in the early part, as I am advised, and then it can be well into the pregnancy before there is really an assessment, which can be distressing because it can be much worse than was expected.

It is a bit of a moving feast, it seems, in relation to the development, and every now and again I hear of circumstances where I am told that there has been an expectation of quite a serious situation and then it seems to have stabilised or not been quite as bad as it was thought to be. Again, that is why it is really important that doctors continue to monitor this. Obviously, every parent would like to know really early on, I am sure, and not have to spend months and months preparing for things, and have a wonderful expectation, and then to be hit with this four months into a pregnancy is a shocking situation, but that is the reality of what they are dealing with.

Let's look at the difference between serious, substantial, significant. These are different phrases legally. For example, we have 'serious harm' regularly in our criminal law, and we have 'significant' and 'substantial' used in different circumstances. What I am advised from the techno-word people on this is that:

When drafting legislation, words are given their ordinary meaning. However, although words have been interpreted in the past by a court, in a new act all terms are open for interpretation within the context of how they are used. The word 'significant' has been recently considered in the courts as meaning 'not merely material but considerable, large, weighty or big; as such it implies a matter of more or greater significance'.

I would add that I would not go so far as to say that means 50 per cent plus one, on the balance of probability-type language, but you can get the flavour of what the courts have said there. It continues:

The term 'substantial' in certain circumstances has also been to mean a matter that is large, weighty or big. However, the word 'substantial' is defined to mean 'genuine, real or actual or of substance'.

For some, listening to that I am sure they think that is as clear as mud. It continues:

If the risk of an occurrence is substantial, then it could be considered to be a genuine, real or actual outcome, that is, the risk exists and it is not fanciful or theoretical.

Ms Stinson: So it's a greater test than 'significant'?

The Hon. V.A. CHAPMAN: It is essentially a greater test, the member is absolutely right. In child protection, it is something we are quite familiar with—risk is often raised. I am not a child, but there is a risk that I walk out on this floor and I trip over. There is probably a much higher risk or a substantial risk if I am wearing platform shoes with seven-inch heels.

The fact is that we rely on the courts in a new piece of legislation to refresh, to look at that as a new piece of law, within the context of that law, so our drafters try as much as possible, certainly in the advice they are giving me, to be consistent in the application of certain words. The question of reference in this amendment, certainly I canvassed with them the use of words including 'serious', 'substantial' and 'significant' and, on the advice I received, it was as per the final draft here—to be more than just a risk. A risk is a possibility. For me, we are talking here now of what is on balance more likely than not. That is the way I am interpreting my layman's assessment of that.

Ms LUETHEN: I will make a short contribution in support of the Attorney-General's amendment and concur with many remarks that have been made in terms of this being a difficult clause. It is so difficult for us to find some common ground because it is a medical, social, ethical and legal issue, which is why it is very important for us not only to reflect on the community feedback but to reflect on what we have learnt up to this point looking at and listening to health experts, evidence and research.

I would like to refer to two pieces that have guided my thinking and get that on the record. One is from Wellbeing SA. They have said:

Later gestation abortion is exceedingly rare in South Australia with only 0.3% of all terminations in 2018 occurring after 22 weeks gestation.

In my second reading speech, I said that in South Australia there have been no abortions after 27 weeks, and there are no indications from the research that I have done that that will increase if this bill is passed. Wellbeing SA goes on to say that these terminations only occur in unusual circumstances, including:

1. late diagnosis of a serious congenital anomaly

2. extreme social circumstances that led to a late presentation (eg rape, incest)…

3. serious risks exist for the woman in continuing the pregnancy

The other piece of research that I have done and I would like to refer to is from a presentation provided to me by Dr Judith Dwyer, who was the previous chief executive of Flinders Medical Centre, and draws upon her significant experience. She says:

…patients who undergo this procedure are without exception facing very challenging and complex circumstances…in 2018…the majority of those (51%) were for fetal abnormalities, with a further 9% due to [serious] illness in the woman. I wish to share…insights into the remaining 40% of abortions after 20 weeks…which are undertaken for what is categorised as 'mental health' reasons.

She goes on:

The examples outlined below give an indication of the breadth of the situations that give rise to the need for abortion after 20 weeks…

She gives a series of examples, but I am going to draw out two:

A mother of several children whose husband shot her non-fatally in the head. By the time she was physically and mentally well enough, and able to consent to non-emergency treatment, her pregnancy was in the second trimester. Would you, in good conscience, deny needed health care to this desperate but resolute mother?

The second of her examples is:

A woman subjected to family violence against her and her young child, who was prevented from using contraception when her husband raped her. She managed to escape the situation with her child, but not before she was over the legal gestational limit in South Australia…

If we had the current laws, she would be forced to travel interstate for the abortion care she needed in order to set up a new life for herself and her child. Dr Dwyer continues:

In each of these cases, the likely reported reason for the abortion would have been 'risk of injury to the mental health of the woman', because that is the available category…The realities faced by these patients—

and people raped and in incest cases, as I referred to in my second reading speech—

should not be confused with ill-informed and misleading interpretations spread by those who oppose access to safe abortion…There are no women who light-heartedly 'change their mind and decide to have an abortion'…There is no 'abortion on demand for no reason'.

As the Attorney-General has outlined to us tonight, these decisions are in the hands of trained doctors conferring with the pregnant woman, making very serious decisions and risking their professions if they make unethical decisions.

The CHAIR: The Minister for Environment, I think your time has come.

The Hon. D.J. SPEIRS: Thank you. This is the long-foreshadowed amendment. This amendment is not the one I had filed that seeks to establish a regime to restrict late-term abortions; rather, it is an amendment to the amendment proposed by the Attorney-General, so I move:

Delete paragraphs (a)(ii) and (b)(ii).

I have no confidence that the legislative regime being proposed by the Attorney-General as a private member's bill will present and create the appropriate protections for unborn babies at what we would class as 'late-term', that is, after 22 weeks and six days.

I believe that the term 'mental health' creates a large and undefined gateway towards late-term abortion. In one of the Attorney-General's answers to a question asked by the deputy leader (member for Port Adelaide), which was a very pertinent and worthy question, the Attorney-General outlined a whole range of things that would be taken into consideration to prevent a late-term abortion from occurring. Those things gave me huge confidence and that is why I think this law is lacking. For whatever reason that I cannot understand, the Attorney-General and the advisers, particularly from Wellbeing SA, have chosen not to translate those protections into law.

I think the amendment we had from the Attorney-General has been unfortunately created on the run. It hurts me to have to say that in this house as the Attorney-General is a colleague and a friend of mine, but I do not think the amendment we have before us provides the protections that we need. As a consequence, I think deleting (a)(ii) and (b)(ii) will create a more robust regime. It will remove the uncertainty that is created by the term 'mental health' and it will also achieve what I think the member for Enfield has been trying to achieve in another amendment filed under her name. As a consequence, I think it may supersede the need for that amendment, if that be the will of the member for Enfield.

If successful, this amendment would bring the overall amendment perhaps a little bit closer to what the Attorney-General is after because it does take out that section which refers to the 'incompatibility with life' in my previous draft amendment. I am happy to walk away from that on the basis that I think if we delete (a)(ii) and (b)(ii) we will have a situation which tightens this law and creates the appropriate protections.

Ms COOK: I have a question for the member for Black: is he able to inform the house as to how many neonatologists or obstetricians and/or currently practising health practitioners he consulted with in relation to the development of his amendment, and, if his amendment does happen to get up, will he then be supporting the bill?

The Hon. D.J. SPEIRS: I thank the member for Hurtle Vale for her question. I have consulted with a number of medical practitioners in the formulation of this amendment—really, the previous amendment I have filed which has led to the amended version of the Attorney-General's amendment; I guess they feed one another. I have consulted with many people—I could not put an exact figure on it—working in the medical profession, some who have been involved and are supportive of abortion taking place. These medical practitioners, these doctors, have not necessarily been anti-abortion; in fact, that was and is a significant part of their work life.

The member for Hurtle Vale should feel extremely confident that I have consulted as widely as I was able to develop this amendment. I believe I have got it to a place where, if this amendment in its current form is passed, I would be very likely to support the bill at its third reading.

Dr CLOSE: We had to listen to a number of questions of the Attorney concerned about late amendments and that it was not the right way to do legislation, to suddenly bring in an amendment—'suddenly' being this morning—and that it was not appropriate to say that the AMA and the royal college were able to be supportive because it was so recent.

So I ask the minister how he can be confident that his most recent amendment, which is somewhere in this pile that keeps arriving here, has indeed been adequately and appropriately considered by people who are practitioners in abortion, who experience the current legal conditions and, more importantly, both their own professional guidelines and the real circumstances of women. How can we be confident that we have adequate feedback on their views, because the AMA and the royal college, in one of the earlier versions of the minister's amendments, described it as discriminatory and unworkable?

How are we to have any confidence that a line through a couple of bits of clauses makes any difference to that position of these two organisations? These two organisations, I would add, are ones in which we place an enormous amount of trust in many other fields of endeavour, not least the AMA when it comes to managing COVID and the vaccination roll out but whose views on these amendments are somewhat suspect now.

The fact that the minister has met with a few doctors who think that what he has is a good idea—I do not know which version that was—is considered somehow more robust. I would like some more detail, if there is any available, about why this version of the amendments is not discriminatory and is workable?

The Hon. D.J. SPEIRS: I certainly do not accept that this amendment is discriminatory, and I strongly disagree with the position put forward in the letter from the AMA. My amendment flows directly from the Attorney-General's amendment and, as a consequence of that, much of it has been dealt with through the Attorney-General providing to the house that she has confidence in a large proportion of it.

In consultation with people working in the medical profession and with people beyond that as well—people with lived experience and people who have a whole range of values that may be similar to mine, maybe representative of the broader community—I have chosen to delete one portion of the Attorney-General's proposed amendment to give it, in my assessment, a position that would be more acceptable to the broader South Australian community. As a member of parliament, I have to make that judgement. I have to exercise my conscience in a way that I see fit, and that is what I have done in putting this amendment to the house.

Mr KNOLL: I think at this point it is instructive to put a couple of comments on the record in relation to the exact thing that we are dealing with and to the exact question I think the deputy leader has put forward. The first of these comes from Professor R.J. Norman, who is Professor for Reproductive and Periconceptual Medicine at the University of Adelaide and a founding director of the Robinson Research Institute for reproduction at the university. He states:

In this bill we are operating a dual standard. 'We deny human rights to a viable fetus, yet in premature birth we strive our utmost to preserve human life. Logically, there is no difference between the potentially disposable material in the womb at 23+ weeks and the sacred inviolable rights that are conferred upon the baby at birth'…My recommendation is that in the case of normal fetus the primary aim should be to deliver it alive and provide life-giving support for the child and perinatal psychological support for the woman involved.

We then move on to an adjunct associate professor in obstetrics and gynaecology from Flinders, who says:

Today—

and this is in relation to a speech that was given a few weeks ago—

you heard arguments as to why abortion after viability, 23 weeks, should not be allowed: because the live birth option is safer for the mother from 23 weeks, and humane to the baby, and because the evidence from Victoria clearly shows it's open to abuse—patients will request it and there are doctors who are prepared to do it.

A third comment from Dr Roy Watson, who is a specialist obstetrician and gynaecologist and a past Vice President of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists, who states:

Firstly, is the matter of gestation. I find it abhorrent that this legislation would allow aborting a baby at term for any reason, but certainly for maternal psycho-social reasons. Even when it is necessary to end a pregnancy beyond fetal viability to safeguard the health of the mother, this can always be done in a way so as to allow the child to continue their life. Almost everyone with whom I discuss this issue agrees that feticide after the point of viability is not acceptable.

I would contend that they are three learned voices who have operated as specialists in the field, and they have all said that, past the point of viability, the reasons for needing to terminate a pregnancy with the object of the baby not surviving, of the baby dying, are extremely limited. In fact, their contention is that the ability, post 23 weeks and post viability, for babies to be kept alive and for there to be alternative ways to help when it comes to psychological treatment for the mother, that there are alternative ways to go about that.

Ms COOK: Is there a point of order available regarding the identification of Roy Watson? He was not an obstetrician at all; he was a gynaecologist, which is completely different.

The CHAIR: Sorry, what is your question?

Ms COOK: I am just asking if we can correctly identify people in the house. It is a question. Can you correct the identification? You have quoted Roy Watson. I believe that should be corrected to be Roy Watson, gynaecologist, not obstetrician. He has nothing to do with babies; he is a gynaecologist.

The CHAIR: Would you like to respond to that, member for Schubert?

Mr KNOLL: No, I do not, because what I am quoting from was actually material provided directly from the speakers themselves.

Members interjecting:

The CHAIR: I think we might just move on from that. It is now on the record twice, because I believe the member for Schubert was reading from Hansard, which I have allowed.

Mr COWDREY: I just want to ask the Attorney a question in the hope that it will help me as I ponder the amendment that has been put forward by the Minister for Environment. Not too long ago in debate, the Attorney referenced advice in regard to the RANZCOG late-abortion statement and the principle of 'medically appropriate'. She made reference to a number of gestational limits, those being, prima facie, where the viability of the foetus was considered as the paramount consideration in what happens or the decision-making process that clinicians undertake. I have had concerns raised with me and, to be frank, to an extent I share those concerns in regard to late-term aspects and the way that we regulate or otherwise those.

I have read the RANZCOG statement. I cannot see any reference to specific dates. I understand that some of this may be risk based and we may not be putting these things to the complete and utter nth degree on a piece of paper in a framework, but I guess where I would like to see an assurance is at what date is the viability of the foetus deemed to be the number one and paramount priority? Also, what stops the interpretation of this framework being different from doctor to doctor?

The Hon. V.A. CHAPMAN: I am happy to answer that.

The CHAIR: Yes, but I should point out to the member for Colton that we are actually dealing with the amendment to the amendment of the Minister for Environment.

Mr COWDREY: I understand that, sir, but this will provide context to how I think the house potentially interprets the Minister for Environment's amendment.

The Hon. V.A. CHAPMAN: I think the minister is conflating two answers. Firstly, I gave an answer in relation to the guidelines that the college put out at a national level. That is available, and I think you have a copy of it. Someone has my copy somewhere, but anyway it is there. Adding to that, the data I provided on the advice from the professor here is in answer to a question about a 35-week pregnancy, where there is a healthy baby and an assertion of mental health by the mother. The factors that would be taken into account in that circumstance would justify the answer: that is, no, that would not be a medically appropriate termination.

The answer to that, I explained, is that the professor said that the most significant feature, the fact that it would be taken into account there, which supported the argument that that would not be a termination option, was the viability of the foetus. She gave 23 weeks as being the time when there would be risk of death or disability and a high requirement of service. At 30 weeks it is satisfied, and even at 29 weeks, she qualified, it is likely that the baby will survive and need minimum support. Therefore, the viability of the foetus became the most significant feature in the assessment by the medical practitioners when they consider the scenario provided by the member for Black, namely, 35 weeks, healthy baby and the mother asserting that she had a mental health problem.

Mr COWDREY: From your answer, effectively—

The Hon. V.A. CHAPMAN: The professor is adding that those figures, those weeks, are on average. I do not think I said that before, but those weeks are on average. If there is a health issue in relation to the foetus, that could change, but in the scenario that the member for Black put it is a healthy foetus, 35 weeks old—so very late term—with the mother presenting a claim that she has a mental health problem.

Mr COWDREY: You are effectively referencing viability stats and the weeks that viability is deemed to be plausible. Where is the framework that that becomes the paramount or the primary consideration documented? How do doctors determine that that is the primary issue to be taken into consideration? Is that written anywhere? Is that communicated more broadly? Is there some sort of framework distributed to help all of us understand the decision-making process and what 'medically appropriate' actually means in the circumstances?

I think it would give many of us a greater level of assurance that these things potentially would not be contemplated if it was more coherently communicated to members as a true understanding of what 'medically appropriate' actually means and when the consideration of the viability of the foetus is the primary consideration.

The Hon. V.A. CHAPMAN: There is no short answer to that, and I suppose that is exactly why we rely on the medical profession to consider all of the factors that present in every particular case. If it was that simple we would not need a doctor at all; we would just get a scenario and open up A to Z and list the issues and do that factor yourself and work out your own scenario.

I have an expert sitting here, and the professor has indicated to me that, in answer to a specific question about whether a termination is medically appropriate in this scenario, she has assessed that and given me that information. The question of viability of a foetus, she would say in that scenario, is the primary factor in the assessment of whether there would be advice to have a termination or not. Things like at 23 weeks there is still a risk of death or disability and at 30 or even 29 weeks it is likely the baby will survive are assessments that are made not on any particular case, but they are a level of advice from an expert who makes that assessment.

They are two different things: one issue is what are the guidelines about what should be taken into account and what factors are to be considered by the royal college, the national body, and then there is a separate issue about what would happen in relation to a termination where there are those three factors—the mother turning up saying, 'I've got a mental health problem,' she is 35 weeks pregnant and she has an identified healthy foetus. That is the specific advice.

How do you codify that? That is the very problem that SALRI identified in saying that you will never cover every case, and there will always be factors that get taken into account. We are trying to do this in this prescription process. The previous speaker, in identifying summaries of the Dwyer letter, raised another one that, frankly, I had never even heard of. It just makes you realise that no matter how long you have been around these things the more cases will come up where you think, 'Goodness, how could we have ever contemplated that?'

There is no simple way of going to a document that says, 'These are all the factors, this is the weight they carry and you can tick a box and calculate it yourself.' We need people like the professor here to actually do that assessment, and that is what we cannot answer. That is why, when we are hit with different scenarios, it is a challenge for us. We cannot make that assessment, but as an accumulation we have to be able to. I was just asked about a specific scenario there, so does that help?

Mr COWDREY: To an extent. Where I am trying to get to is that no matter the circumstance that has different factors involved there is always a primary consideration. No matter how we build a framework of considerations, there is always going to be a point where there is a primary consideration. In terms of foetal viability, at what point is that no longer the primary consideration? That is simply the question I am trying to understand.

The Hon. V.A. CHAPMAN: Could you just repeat the last bit of that question?

Mr COWDREY: I will try to word this in the most expedient way I can. In any circumstances, obviously there are going to be a multitude of factors. We are quite likely never going to encounter the same factors of anyone presenting. I completely understand and am happy to accept that without any shadow of doubt. In purely the circumstances of a healthy foetus—otherwise not encumbered, changed in any way, shape or form—using other considerations, as we said, whether that be the mental health of the mother, at what point does the viability of the otherwise completely normal foetus no longer become the primary consideration?

The Hon. V.A. CHAPMAN: At 22 weeks and six days—or 23 weeks, say, to round it off—viability under that time is not the consideration. That is why I have put it in the bill, to say—

Mr Cowdrey: The primary consideration.

The Hon. V.A. CHAPMAN: The primary consideration, absolutely. The professor will correct me, but that is why we are talking about a different set of standards after viability—because once the baby is viable it is healthy. If it goes full term, it is going to be alive and well and a healthy baby, and that is when it kicks in; is that fair to say? The professor adds to that, and I have just identified it in the Wellbeing SA document, in which it says:

It should be noted that the most common scenario of a second trimester termination is around the 23-25 week mark—

There is that parameter; I have chosen 22 weeks and six days as the bottom end of that threshold—

and the termination is undertaken due to a congenital anomaly. The anomaly is often only able to be identified at this stage or later. If babies are resuscitated from 23 weeks in spite of an abortion attempt, they would potentially have more severe ongoing disability than if an abortion was not attempted at that stage. In many cases the disability itself will not lead to the death of the baby in the short term. These babies may in fact be born with signs of life.

The entry point of a different regime is from that 23 to 25 weeks. That is why we hear from doctors, time and time again, that even though the law lets them do terminations up to 28 weeks, the latest termination in South Australia was a single one at 27 weeks. Even that is lawful under our current state. Doctors will say after 24 weeks, because that is the end of this parameter, but some doctors will say viability is from 22 weeks and six days, so there is that little shaded area. From that parameter, we move into a different regime and the viability of the foetus, all things being equal, then becomes the primary factor after the threshold.

Mr KNOLL: Just a quick personal explanation. I have gone back and checked the veracity of the member for Hurtle Vale's claims. The information I have—and I have tried to do a quick search—says that Dr Roy Watson has been a specialist obstetrician and gynaecologist and certainly is qualified in those areas. He is a past vice president of RANZCOG and he is currently the head of gynaecology. I stand by the statement that was previously put and certainly would not want there to be any misrepresentation about the credentials of Dr Watson.

The Hon. D.C. VAN HOLST PELLEKAAN: I have a couple of questions, but I just want to be sure that we are all on exactly the right track here, because the principles are important but so are the words. We are debating or discussing the Minister for Environment and Water's amendment to the Attorney-General's amendment to her own bill. Just to be really clear, are we looking at the piece of paper that we have that is 110(9), amendment No. 2 [Speirs-3]?

The CHAIR: Yes, that's correct.

The Hon. D.C. VAN HOLST PELLEKAAN: The Attorney-General has given us some comfort with regard to the importance of viability of a foetus, which I am sure we are all glad to have. I just want to check: my understanding when I heard the Minister for Environment and Water describe his amendment was that it was the same as the Attorney-General's amendment No. 2 [AG-1], but with the removal of (a)(ii) and (b)(ii).

Mr Knoll: Yes, that's right.

The Hon. D.C. VAN HOLST PELLEKAAN: I am not actually concerned by this; in fact, from my perspective at least it gives me comfort because it fits in exactly with what the Attorney-General has been telling us. However, it is not as simple as just removing (a)(ii) and (b)(ii). In the Attorney-General's amendment, (a)(iii) would become (a)(ii) and (b)(iii) would become (b)(ii), but her (a)(iii) and (b)(iii) are not the same as (a)(ii)—

Members interjecting:

The Hon. D.C. VAN HOLST PELLEKAAN: So it is not as simple as just taking out the (ii).

Mr Knoll: But it does reflect the Michaels proposed amendment.

The Hon. D.C. VAN HOLST PELLEKAAN: I understand. That is why I was just checking. When I asked, 'Did I hear it correctly that it was as simple as taking out the (ii)?', I was told yes, but it is actually not as simple as taking out the (ii) because the new (ii) are different and give this assurance.

The Hon. V.A. Chapman: Correct.

The Hon. D.C. VAN HOLST PELLEKAAN: Yes, just to be absolutely sure.

The Hon. V.A. Chapman: They are different from 110(9), you are right.

The Hon. D.C. VAN HOLST PELLEKAAN: Thank you.

The Hon. V.A. Chapman: But that is what he wants; he is entitled to have what he wants.

Mr SZAKACS: A question to the Attorney: I appreciate that a number of questions in respect to this clause have been seeking to find binary or finite answers and outcomes of what is otherwise incredibly complex medical reasoning. What I am interested in, I suppose from your adviser, is whether it is impossible at times in determining this question of a binary outcome? I go particularly to the member for Colton and his question around at what point does the primary concern become X, Y or Z? Is it a possibility that we never arrive from a medical point to a primary concern because there are simply too many complex, interwoven and interoperative medical outcomes?

Perhaps in a non-termination, non-abortion perspective, I can look at treatment for terminal cancer, where one outcome may be to proceed with an operation to try and remove the tumour, and, on the other hand, that operation may take the life of that patient, both of which are weighed up as serious concerns, both of which are properly put to the patient, and ultimately the primary outcome there—or the primary position or the primary concern—is never at either stage able to be arrived at because it is through informed consent of the patient that we find ourselves at the primary point of concern.

Can we find ourselves in the situation that has been put in your amendment that we simply cannot ever get to a point medically where a primary concern will either be the medical and health considerations of the person or alternatively the primary viability of the foetus?

The Hon. V.A. CHAPMAN: It is probably me who has confused people because we seem to have settled on a particular scenario where we are asked what would be the primary feature in a circumstance that was given. We got an answer to that and it was the viability of the foetus in that particular scenario that applied. The provision here is that the medical practitioner has to consider in all of the circumstances, and following was the question of when would the viability of the child not be the primary consideration. Again the experts say, 'Well, look from that period of 23 to 25 weeks when there is that range. Before that it is not, but after that it is.'

Whether it is the most important or the strongest or the greatest weight will always depend on different circumstances, but the medical practitioner actually has to consider that, in all of the circumstances, bang, bang, bang. So it is not a question of giving a certain thing a weight necessarily that then has to have greater weight than other things. If you look at something like a procurement process, you have to look at the weighting of the value of a contract, and then you can give it a percentage and so on, and we have all sorts of formulas and models of how we do those things in a legal world. Again, all these factors have to be taken into account but you take them into account when you are giving the advice about whether they are going to win or lose their case. In a health situation, in this particular procedure, all these circumstances have to be considered and then, of course, the specific limitations that we are putting on them.

Just because the member for Black has identified a particular 35-week foetus case for me to ask the experts on, that does not mean that there is always a principal or lead circumstance that is the greatest weight. In fact, all of these matters have to be considered, but she has indicated in that particular case. I have a question, Mr Chairman, of the mover of the amendment.

The CHAIR: Just before you do that, Attorney, I would like to correct the record and I will go back to the question from the Minister for Energy and Mining.

The Hon. A. Koutsantonis: At this stage in your career.

The CHAIR: I know. We are dealing with 16 schedules of amendments, member for West Torrens, and some of those amendments have even changed during this evening, so bear with me. The question the Minister for Energy and Mining asked me was if what we are debating now is schedule (9) amendment No. 2 standing in the name of the Minister for Environment. In fact, what the minister moved was something slightly different to that schedule. I will take the committee back to what the amendment actually was and that was to delete (a)(ii) and (b)(ii), which in fact is slightly different to 110(9). So is that clear?

Members interjecting:

The CHAIR: I am here to help, Tom.

The Hon. D.C. VAN HOLST PELLEKAAN: Thank you, Chair, because I think some people were thinking, 'What's that bloke asking about?' so I do appreciate that clarification. With that clarification, we are discussing what is on the paper, which was slightly differently described, but we are discussing the amendment to schedule (9) amendment No. 2.

The CHAIR: Probably the best reference for you, Minister for Energy, is schedule (7) with (a)(ii) and (b)(ii) deleted. Go back to schedule (7) to delete (a)(ii) and (b)(ii). That is the amendment that finished up being moved. Attorney, you had a question for the mover.

The Hon. V.A. CHAPMAN: For the mover of the amendment, yes, thank you, my colleague the member for Black. I will not take any point about this next amendment coming in this morning. I am looking for the rape and incest clause. So 110(8) is the foreshadowed amendment of the member for Black, which is essentially to insert into this prescription process:

(3a) A medical practitioner may, in circumstances where the pregnancy was the result of an alleged act of incest or rape, perform a termination on a person without acting under subsection (1).

I am not even going to ask about consultation. What I am going to ask the member for Black is: is it intended that this would be allowed to be considered on the basis that the woman claims that there is an alleged act of rape or incest and there is no obligation on there to be any proof of it?

The CHAIR: Attorney, you have jumped ahead here, so I think we might deal with the amendment to your amendment first.

The Hon. V.A. CHAPMAN: Can I ask it in this sense: in the event that the amendment to the amendment is successful, is it the member's intention to move 110(8)?

The Hon. D.J. SPEIRS: No.

The Hon. V.A. CHAPMAN: If it is not successful, is it the intention of the member to move 110(8)?

The Hon. D.J. Speirs: Perhaps I will.

The Hon. V.A. CHAPMAN: If it is the intention, can I ask the member—

The CHAIR: I would rather follow the process here. I do not think we should be too pre-emptive tonight. I would prefer to deal with the Minister for Environment's amendment to your amendment, which is what is before us now.

Dr CLOSE: Because we are not dealing with any other amendments, what we are being asked to do is consider the amendment that the Attorney-General has put up allowing late-term abortion, abortion past the 22 weeks and six days, but not allowing for that to occur if the continuance of the pregnancy would involve a significant risk of injury to the physical or mental health of the pregnant person. That is not something that is able to be considered under the minister's amendment.

The CHAIR: The Minister for Environment's amendment, yes.

Dr CLOSE: My question to the minister is: in the case of a 13 year old who is pregnant to an adult and hides the pregnancy through shame and denial, fronts late and is desperate and unhappy and her life is on the verge of being ruined by what has happened to her, they cannot do anything for her because it is not saving her life and there is no evidence of serious foetal anomaly; is that right? She would be required to go full term, despite being 13, despite having been impregnated by an adult, which is at least statutory rape, if not actual rape.

The Hon. D.J. SPEIRS: That is correct, although there is an amendment for incest and rape, which has also been moved and which I would be interested in presenting to the house later. But, as things stand, I think there is no cut and dried circumstances here. There will always be scenarios in all aspects of law that are not covered off on, and this is certainly one.

I guess the position I take is that there is an opportunity for a life to be produced here. There is an opportunity for a baby to be born, and that is the position that I take. It may not be a position supported by the deputy leader and some other members of this house, and I accept that. I take a different philosophical, a different moral position on this and want to support as many babies as possible to reach full term. That is simply what motivates me to move this amendment in a holistic sense.

Dr CLOSE: In that scenario—and it may be that the Attorney is in better possession of the answer; this is a factual question—if we have this piece of legislation saying, 'No, you must carry this child to full term, despite being a child yourself,' is it perhaps the case that the doctors would send this child interstate where the laws recognise more the circumstances of that child?

The Hon. V.A. CHAPMAN: I would not say 'the doctors would send her' interstate—obviously the guardians or the parents or whatever would have to look at that—but that is the situation that faces some women now under our current laws. If we were to develop a set of laws which resulted in a child being forced to have a child then there would be no option but for them to go interstate, and I would think that a very sad day.

Ms HILDYARD: We know there are a number of victims of reproductive coercion where violent partners use pregnancy to trap that particular person and their children in violent and sometimes life-threatening situations, where they cannot seek health care. Under this amendment—should this amendment be successful—would our new laws abandon those people?

The Hon. D.J. SPEIRS: I do not accept that anyone would be abandoned by this more restrictive framework that I have proposed. I just do not accept the premise of that question at all. We can go through lots of scenarios like this where someone may not necessarily be provided with the outcome that people in this place would want but, at the end of the day, whether it is the example the deputy leader has presented or potentially depending on the stage of the pregnancy, because this amendment would only be triggered after 22 weeks and six days, certainly under this law we would be in a situation where a baby would have to be born, delivered, anyway. My position is that we should make every effort to see that baby born alive rather than be terminated and born dead. That is the position I take.

Ms HILDYARD: For women with disability, carer abuse, sexual abuse and reproductive coercion can come from their legal guardian. This means that that person often cannot access any health care at all or in some cases cannot consent to procedures without support from their abuser, who is also their guardian. How would your amendment include those particular people?

The Hon. D.J. SPEIRS: Again, we can construct many scenarios here, and that is the role of the parliament. I believe that this amendment restricts a pathway to late-term abortion. It is more likely to see babies delivered alive rather than delivered dead. Again, that would be apparent in the situation outlined by the member for Reynell. This is difficult law. I think we should give doctors a much more rigid framework in which to make these decisions, and I have outlined that a number of times this evening.

The Hon. A. KOUTSANTONIS: I rise in support of the member for Black's amendment, and I thank him for developing it and moving it. I think it is absolutely right to say that if the amendment is successful, fewer babies will be aborted late term in South Australia, no doubt. But I think the proponents are also right in that some of those abortions will occur interstate. There is no doubt because the system the Attorney-General wants to introduce in South Australia exists interstate.

I will give the house some of the stats from Victoria, where the system the Attorney-General has been talking about operates, over the many years since the introduction of those changes. South Australians do go to places like Victoria for these late-term abortions. The Victorian government publish the reasons, the indications, every year. They publish terminations for psychosocial indications, stillbirth and neonatal death. In a number of years, there were more abortions done for psychosocial indications than congenital abnormalities.

So, yes, our legislation will potentially save lives. That is exactly what the member for Black is attempting to do. If people wish to continue to terminate viable pregnancies for psychosocial reasons that are past a gestational limit we set here, they will go to the jurisdiction that allows them to have it. That is the point I think we are making, that jurisdictions that have adopted these changes do have more of these abortions. More of them happen because it is more permissive. That is the point that we are making and I think the proponents are making. We are both making the same point.

What we are saying is we do not want that to happen. I cannot wave a wand and change the law in Victoria, but these stats speak for themselves. I am not sure we are solving any problems here today with the Attorney's law. All we will see is more abortions performed. In the statistics—2005, 2006, 2008 to 2010, 2013—the numbers are either more or equal, so we know that this occurs.

I do support the amendment of the member for Black. I think it is a sensible one. It would be very interesting to see what happens here, but I think both members are right. If it does not occur here, people will seek to go interstate because it is more permissive, and the Attorney-General is seeking to bring that more permissive regime to South Australia.

Mr SZAKACS: Can I briefly reflect and thank the member for West Torrens for his frankness, which I do appreciate. It is the honest statement that the member for Black's amendments will lead to fewer terminations. That is a statement I think we all agree on in this chamber. Even if that means that fewer victims of incest, rape and child abuse will be able to terminate, albeit for those reasons, we still acknowledge that fewer will occur. I also am happy to fill in a couple of years that the member for West Torrens did not get to in his comments from 2014 onwards in Victoria which show a decrease in 20-plus week terminations from pre decrim levels. Numbers are fluid and often are used to promote an argument either way.

The Hon. A. Koutsantonis interjecting:

Mr SZAKACS: Yes, and it is not by any means suggesting that the member for West Torrens was improperly not disclosing them. The point that I make is that there are many factors at play here which lead to 20-plus week terminations. I do have a question of the member for Black with respect to his amendments, and that is very clearly that, in the amendments put, the risk to injury, safety or otherwise of the pregnant person is deleted from the Attorney's amendment.

My question to you is: is there any extent of profound prolonged disability that would give cause for a termination in these later stages, or is it simply that unless the imminent and acute saving of life was not able to be attained and, no matter how profound the permanent disability is to the mother, it would not matter in the consideration of these amendments?

The Hon. D.J. SPEIRS: Firstly, I do not have any knowledge of significant physical injury that would come from a pregnancy that would not be caught by saving the life of a pregnant person. I think if you were talking about injury so great, as described by the member for Cheltenham, that would be assessed as being necessary to save that life whether at the point in time or in a point in the future.

Mr SZAKACS: I will ask the Attorney the same question because she may have spoken to a few more doctors than the member for Black has. Is there ever a position, as the member for Black has put, where such a profound disability arising potentially from childbirth would not lead to an acute saving of a life if the foetus was to be terminated?

The Hon. V.A. CHAPMAN: I gave a list of a couple of matters that we will check again to see if there is anything else we can provide. Pre-eclampsia was one and also renal failure. I think I referred to those as two very significant disabilities that could occur as a result of their having a condition. It is not life-threatening, they will not die from it, but they will have a significant disability from it. So, yes, there are. They were two of them that I can remember I spoke of. I will bring back the professor and see if there is any other circumstance.

Another example the professor gives me—which hopefully I can recount accurately—is, say, the mother has multiple sclerosis. The pregnancy itself may cause a further deterioration of the mother in those circumstances; it may not kill her, but it will provide her with more disability and complications. So, yes, there are circumstances, as the member for Black acknowledges, but I think he is expressing his view that his position is that it is either (a) life-threatening or (b) a serious foetal abnormality and there is really nothing between. They are the sorts of situations, I am advised.

Mr MURRAY: I am particularly prompted by the reference to people suffering from multiple sclerosis, having a deep personal knowledge of it. I want to further elaborate on that which flows from the contributions of the member for Cheltenham and, to some extent, the member for Reynell, talking about specific examples and asking the question about, insofar as these amendments are concerned, whether or not those situations would be adequately addressed.

If I go further back to the member for Colton's question, I am intrigued by the situation where, if we posit a variety of different scenarios under this legislation—so we move away from today's legislation, which is very prescriptive and we start to discuss these particular things—we can ask the expert and the expert will provide us with an answer as to what may happen in those cases. I am intrigued by several things. First, we are assuming that in the case of incest or of a mother who has MS it is more likely that a decision to terminate is going to qualify and/or be ranked higher than the question of viability.

The question I have is: is there a compendium, is there a list, or do we simply remain forever asking specific questions and getting specific references? I know with great certainty today what will happen post 28 weeks; with the scenarios you have posited, we know what is going to happen. The difficulty we all have is that we do not have a construct, a readily available construct, however broad. I presume that is the case, and I am asking the question: is there a readily available construct, weighting—call it what you will—that can give us some comfort about the means by which the decision, yes or no, in all circumstances, is at least arrived at?

Is there something written that can give people some comfort about what helps determine these decisions? I have heard three or four different answers tonight. You have asked the expert and the expert has given us an answer, and that is great. My question is: can we collectively get some idea, in writing, about the decision-making process to take back to the people in our electorates to say, 'Look, we're no expert, but these are the sorts of things that are determined and the weighting given to them,' with a caveat if need be, or is it simply not possible to derive that?

The Hon. V.A. CHAPMAN: The simple answer is that there is no compendium. There is no digest of factors or weighting to be given, or a percentage. That is why we go to the specialists, to give us that advice. I am told that even being an asthmatic could, depending on how severe an asthmatic they are, presumably, or how badly affected they might be by the pregnancy, may be a sufficient condition to have to consider whether it is life-threatening. Perhaps it is not, but is it sufficient to cause them another disability?

That is what they have to assess, weighing up the factors: presumably the age, weight, condition of the mother to start with, the level of the condition she has got, whether her baby is 100 per cent well or has other factors—these are all the things they have to weigh up. It is not easy, and that is why we start from this very premise of how we in this parliament start being prescriptive. It is not easy because we always find scenarios where we are missing out.

While we have an expert here, the member for Black asked me some questions about a 35-week healthy baby pregnancy, and, assuming this, this and this, would this happen. I can ask that specifically. Sure, it would be easy if we had a digest, but that is not the way it works. We have a whole lot of human factors which are different. What she is saying—and I think it is important for us to have confirmation of this—is that viability of a foetus, that is, the capacity to survive outside the womb and thrive as a healthy baby, happens somewhere between 22 weeks and six days and 25 weeks or thereabouts—23 to 25 weeks. There is that sort of range, and the experts have a slightly different view according to that.

I feel really good about that, because she says that the viability of the foetus becomes a very significant factor. It is not even an option way before the 22 weeks and six days. That is why I feel good that we as a parliament have said that we think there has to be some cut off for the doctors to have to appreciate, in the standard they might apply in relation to any other lower term.

We have got to this stage where we have gone from the imposition on them that they have to go through other hoops and specifically consider in all the circumstances these factors to be able to do it, to have a different set of rules to do that. I feel really pleased that we have got that. Doctors take about 10 years to learn all these things, how these things work and if they do affect, and if you are starting with a patient who is an expectant mother who has MS, and then you have to look at the assessment of the time diagnoses and how she has progressed to that stage and then identify whether there is an impact by the pregnancy on that condition. That is what we pay the big money to these people to tell us.

We just cannot put that in a dictionary, an index or a digest—that is just not available. That is what we pay them to study, balance up and give the advice. We are asking them as a parliament that, if they want to recommend to a patient a certain procedure that results in the termination of a foetus, these are the rules we are setting. We are trying to do that to, I think, deal with the nervousness that people have when you move from a prohibition/criminalised sanction model to a health model, because you take away that 28 weeks—that is it, full stop, nothing else.

Even though I can say to you that only one case in South Australia was at 27 weeks, and was under that anyway, there is this fear of statistics that suddenly there might be some explosion of numbers. Some statistics were quoted by the member for West Torrens. We got advice on that; it did not translate. I think other members pointed out that in latter years it actually went down. In Victoria it has been doing this for years. Unsurprisingly, a lot of South Australian women have gone over to Victoria since it has been lawful, because it has given them more choice. Trying to drill down on that data will not go very far, but I think the ABC Fact Check went through it and dismissed that data. That does not really help us.

The fact is that there is some anxiety about moving out of the safety and security of a prohibition/criminalised model to a model—it can be challenging to accept that, but I cannot say to you that we have any capacity to be able to provide a digest of options, because we will always find a set of scenarios where there will be some inequity, some unfairness, some case that a member raises, which some of us think is okay and they can live with, and others of us are appalled by. I do not know if I can be any more help than that.

Mr MURRAY: I have a related question, if I could. Listening closely to the Attorney's explanation, the takeaway I have is that what we essentially have is a well-educated decision derived from and delivered by an expert, based on years of study and experience, which cannot be codified or qualified or described in any way. I presume it is not possible to get it in writing, is it? It is not possible to get any brief indicator.

My question, before you rise, Attorney, is given what you have described is the fact that we speak to an expert and the expert gives us a subjective assessment based on their assessment of the facts, their education, their experience, etc., is it possible—I presume the answer is that it is possible—that two experts will, with one case, possibly give two different subjective assessments? We are perpetually in the situation where, depending on which experts you go to and their training, their perspective and their assessment of the relative weighting of the facts, we will have, with one case, potentially two, or as many experts as you see, different opinions.

I go back to some of the examples provided before and questions asked of the member for Black. I would ask if you could give some further detail on whether it is possible to have different outcomes for some of those different cases, depending on whether you speak to a different expert.

The Hon. V.A. CHAPMAN: Can I just add to the information I have from the professor that there are experts within the profession who can assess risk to mother of pre-existing conditions, for example. This is why sometimes a team of people comes together to do the assessments of risk of particular features, and then there is an assessment.

In answer to your question, yes, one doctor may say, 'I am not satisfied, given the prescription or given the obligations.' We say that once you get over 22 weeks and six days you need to have two medical practitioners who have seen the mother and assessed that these factors are there and sufficient to be appropriate in all the circumstances, and they have to assess all the circumstances within that umbrella as well. Yes, of course there can be doctors who will say, 'I am not satisfied.' We think that one of the safeguards in all this is to have two doctors who have to provide that and go through that exercise.

There is no easy answer to this in the sense of us having a prescription. We have expertise there. We are relying on them to provide the advice. We rely on doctors all the time to do these risk assessments, whether it is for compensation claims, to assess levels of disability for compensatory payments. This is not outside their usual work, but in the area of life threat to mother, carrying conditions, foetal abnormalities, these are highly specialised, and obviously before someone can go in and consider a termination after 22 weeks and six days they are going to have to get to that high threshold.

I suppose at this stage we are considering whether that should just be the life of the mother or the foetal abnormality, or whether we allow for other factors to be considered within the physical and mental health and disability and intellectual incapacity areas.

Ms HILDYARD: I just had a further question for the Minister for Environment. The first part of my question is to seek clarification about whether my thinking about his amendment is correct, and then I have a question based on what is clarified by the minister.

Under your amendment, am I correct in thinking that a woman who is experiencing serious mental illness who might not realise that she is pregnant or who, in her mind, denies the pregnancy or who may not be capable of seeking care early in the pregnancy would be denied care? That is the first part of my question. I am seeking clarification on that.

The Hon. D.J. SPEIRS: I would strongly deny she would be denied care because care is a very different thing. My position on this is that we have two options here. No matter what the particular scenario, this amendment relates to pregnancies beyond 22 weeks and six days. We deem that to be the age of viability. Beyond that, whether that be 23 weeks and one day right through to 40 weeks, there is the opportunity—the Attorney-General says this as do the medical professionals—for that child to be born alive.

There are a range of pathways for that child to take after they are born alive. It could be fostering, it could be adoption, it could of course be remaining in the care of the mother and/or the mother's family. To me, this provides an option for children to be born alive and given the chance to live beyond the age of viability, rather than be delivered—because they will have to be delivered at that later stage—in a state where they are not alive.

Ms HILDYARD: Just to be very clear—and I think you are clear about that—I was actually seeking clarification about the person seeking care in relation to abortion (abortion care). I think you have clarified that part of my thinking. What I am very curious about is in relation to your amendment. If this woman's serious mental illness progressed while she was pregnant to the point where she was suicidal, would that be deemed 'life-saving' and therefore enable her to seek access to a termination?

The Hon. D.J. SPEIRS: I do not believe that it would be and I believe, again, that pathway towards having that baby born alive would be appropriate.

The Hon. S.C. MULLIGHAN: I find myself, on the consideration of both the Attorney's amendment and the Minister for Environment's amendment to that amendment, in somewhat of a quandary. As my earlier contribution on the Attorney's amendment demonstrated, I have been a little concerned that the application of her proposed new paragraphs (a)(ii) and (b)(ii) and the inclusion of the term 'mental health' are very broad.

From subsequent discussions, I understand why it has been drawn like that. It is, I understand, to provide for those circumstances which have been exemplified by the member for Cheltenham, the member for Port Adelaide, the member for Reynell, the member for Hurtle Vale and so on. There is likely to be circumstances where there needs to be—and I am sorry to have to use this word because it is not the best—a discretion or a capacity to provide for—

Dr Close: A judgement.

The Hon. S.C. MULLIGHAN: —a judgement; thank you—a termination in some of these often quite perhaps extreme circumstances of rape, statutory rape, incest or disability and so on. With that in mind, considering the Minister for Environment's amendment to what is proposed by the Attorney, we then have the broad drawing of the mental health proposal to something which is far tighter and stricter. It seems to me, if I can follow the debate, to preclude the ability to form a judgement that a termination is appropriate in some of those circumstances we have heard about.

I would be grateful if there were some further guidance somewhere between the very broad mental health and what is proposed by the Minister for Water—a much tighter stricture on how we can try to arrive at a tighter regime but one that provides for some of the circumstances that I am sure we are all, or if not all the majority of us, concerned about.

I go through this preamble because the Attorney has used the example of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists and their document as it relates to late abortions and the four areas where practitioners can take some instruction from the royal college and take some guidance in their considerations about whether a late abortion is appropriate.

That would be worth leaning on, I think, if we were to still have something in the bill, as has been proposed originally, where there is a reference to professional standards that are relevant, for example. The deeper quandary comes from the third amendment proposed by the Attorney to remove subclause (2) and hence the reference to professional standards; that is, we would not have any guidance if that subsequent amendment, amendment No. 3 in the Attorney's name, were to be successful.

I realise that the bill draws medical practitioners fairly broadly, and certainly medical practitioners in this area will not by definition be members of the royal college. Indeed, without being facetious about this, some royal colleges pride themselves on having exclusive membership, for various reasons. So if not all medical practitioners who may provide a surgical termination, a late abortion, are members of the royal college, they may not feel bound by that particular drawing of professional standards, if indeed the bill gave reference to professional standards.

I raise all that because I am going to ask two questions, one of the Minister for Environment and the other of the Attorney. I ask whether, in an effort to satisfy the desire to find some middle ground here, they would consider a further amendment that drew upon those guidelines from the royal college in an effort to provide some coverage for the concerns that we have had from the members for Port Adelaide, Cheltenham, Reynell and Hurtle Vale. I would be grateful for advice, perhaps first from the Minister for Environment and then subsequently the Attorney, on whether such an amendment, of course appropriately drawn, would be favourably received.

The Hon. D.J. SPEIRS: I thank the member for Lee for his very considered comments. I certainly would consider an amendment. I feel that, not just speaking for myself but in regard to colleagues who have spoken to me, we do need to reach a middle ground as a house. This is very different from any other debate I have been part of in the seven years that I have been here. It is very different from the euthanasia debate back in 2016. I think we are reaching an impasse here, which could be fixed or improved by the presence of an amendment. I think we are probably reaching a place where we should adjourn this debate and go, for the Attorney-General and me and others to work on this. That is my personal view.

I would certainly consider something that captured the professional standards and also sought to potentially capture severe psychiatric illness or a condition like that. I think there is a way to go on this, and we are at risk, I think, of not doing our constituents and the state justice by trying to push through with this legislation tonight.

The CHAIR: Attorney, did you wish to speak to that?

The Hon. V.A. CHAPMAN: I am happy to, yes. I think I have already indicated that we have no problem with leaving in, essentially, subclause (2), to the extent of having 'medically appropriate' back in with the guideline obligations. They are all there. We have repeatedly said that they are, and the medical profession, that is their threshold anyway. We went to the prescription model. I am happy to follow that and look at where we could cover that, but we will leave in subclause (2). I have already indicated that. I am happy to leave in those provisions. That covers that.

To allay the fears of the member for Lee, the peak body, the royal college, although not everyone is a member of it, might see themselves as an elite group; they are the peak body. Their obligations in relation to those guidelines apply to all those practising, I am advised. This is not a question where, if you are not in that union, you do not have to comply with it. They apply to all for their professional standards.

The CHAIR: With all due respect, Attorney, I do not think the member for Lee was talking necessarily about leaving words in. He was talking about an amendment. From my perspective, it is matter of how we do that, because at the moment we are already dealing with an amendment to an amendment. It is possible, but it is just a matter of how and when.

The Hon. V.A. CHAPMAN: The issue that he has raised, from my perspective, as I have just outlined, actually comes to whether I progress another amendment of mine down the track. It will not affect what we are dealing with here. The issue we are dealing with here is, I think, a suggestion by the member for Lee that we go away and discuss how we might be able to tighten up the words 'mental health' to be more restrictive. That is what I am hearing.

Just to be absolutely clear, I have listed a number of mental health illnesses, but we need to also deal with the intellectual capacity, and that is not a mental illness. We are very clear in presenting this for the consideration of the parliament, that the physical—and I have outlined physical problems that women can suffer with disabilities—but also mental health to cover circumstances where we are dealing with someone who does not actually have a form of mental health illness.

I think the key to all that from our perspective is that we are talking about the doctor making that assessment in all the circumstances with all those factors. I do not think that helps us, but I am very pleased that you have raised the question of the re-enlivenment of the other protections, which I think I have already indicated we are happy to leave there.

The Hon. S.C. MULLIGHAN: I am grateful for the response from both the Minister for Environment and the Attorney. Perhaps to be a little more specific about how such a subsequent amendment might work, I guess what I am canvassing is whether the Minister for Environment's amendment was to be supported—i.e., that proposed new paragraphs (a)(ii) and (b)(ii) in clause 6 be deleted from the Attorney's amendment and then an additional provision drafted, as a subsequent amendment to be inserted into the bill, that tries to provide a better articulation of what is in the original bill, which is clause 6(2)(b), and that is what the professional standards are.

While the Attorney assures us that it is her advice that the peak body for all medical practitioners in this area is the royal college, of course we know from previous discussions that the definition of 'medical practitioners' is drawn very broadly as well. It does not necessarily relate to obstetricians and gynaecologists and hence may not specifically have reference to any guidance documents that the royal college puts together.

Nonetheless, what I am trying to do is give some legislative or prescriptive life to what the Attorney has been at pains to explain to us previously; that is, the royal college has specific guidance around things like psychosocial circumstances, and the explanation it provides in that regard, and maternal medical conditions (I will not go into this in too much detail), which are described as, 'Infrequent but significant medical and psychiatric conditions may become apparent or deteriorate during the pregnancy to the point where they are a threat to the patient's life.'

It seems to my mind that those two provisions alone—bearing in mind it is only two out of the four that are provided by that guidance document—might almost successfully throw their arms around most of the concerns that have been raised by the members who have given specific examples that they believe will not be covered by the Minister for Environment's concerns. That is the proposal.

Members can make up their own mind when we consider the Minister for Environment's amendment and what their intentions are with regard to that, and then perhaps their willingness to consider a subsequent amendment. That is what I was proposing: not leaving in (ii) and better defining the mental health prescription but giving some specific life to the Attorney's previous descriptions of the guidance document from the royal college.

Ms COOK: I just want to qualify again the mental health psychiatric illness component, talking to a case where a pregnant person in complete psychosis may present at 24, 25 weeks and require an intensive psychiatric forensic admission. With this particular person there could be self-harm and a whole range of suicidal attempts in a quite disturbing and very, very upsetting situation. Would the Minister for Environment and Water's amendment preclude that woman from accessing abortion care? How would the minister propose that, for the next four months, that woman is managed from an obstetric point of view to incubate the child?

The Hon. D.J. SPEIRS: Again, we can go through these scenarios all night, and the member for Hurtle Vale is completely at liberty to do so. There is no doubt in my mind that that would be captured under (a)(i) 'a termination is necessary to save the life of the pregnant person'. The scenario described by the member for Hurtle Vale is so extreme that it would clearly be captured by the first point.

Ms COOK: Supplementary.

The CHAIR: We do not normally have supplementaries. To be perfectly frank, we have been asking the same or very similar questions for the past hour. Everybody is entitled to do that, I understand, but we are getting to a point where we are going around in circles. The member for Light.

The Hon. A. PICCOLO: Thank you, Mr Chairman; my sentiments exactly. I have been sitting here for five, six hours and, to be quite honest, I am not sure how much I have been enlightened by the debate over the last few hours; it seems to be going around in circles—no pun intended. I have a question. In the last hour or two we have heard a whole range of scenarios. I clearly missed something because the answers I am hearing seem to be inconsistent with what I thought I heard earlier and are certainly inconsistent with what I heard yesterday.

My question to the Attorney-General is: is my understanding of what you said earlier correct? Let's take the example the members for Port Adelaide, Cheltenham and Hurtle Vale gave. The scenario is to the point where the advice has been so far that the baby would be viable, which is 29, 30 weeks; it varies, but say 29, 30 weeks. This is based on what you said a bit earlier, when you gave the example, if I understood you correctly, that at some point, if the baby is viable and likely to be born alive, there would be no abortion or no termination; is that correct? Have I understood you correctly?

The Hon. V.A. CHAPMAN: Let me just repeat it. In response to the question of dealing with a particular scenario of a 35-week pregnant mother with a healthy baby claiming she has a mental health situation, would she be accessible to the option of abortion? The answer from the professional was no, on the basis that, although there is a capacity to live after the 23 to 25 group, by the time they get to 29 and 30 weeks the expectation is that they will have a live baby that needs minimum support—in other words, not just viable but does not need to have an incubator or anything else. I am adding that bit, but you understand the difference. That is in the context of that environment of capacity to live with support to expected to live without the normal. Your question then is?

The Hon. A. PICCOLO: My question then is under what circumstances would a termination of a baby as you have just described be allowed? I think it is important to know. Under what circumstances would a foetus or a baby—use whatever language you want to use—which, as you said, would be viable and would live be terminated? Under what circumstances?

The Hon. V.A. CHAPMAN: The three scenarios that we are considering is, first, when the mother's life is threatened, that is, she is going to lose her life if the pregnancy continues; the second is, and I paraphrase here, a serious abnormality of the baby; and the third is that the physical or mental health of the mother would involve a serious risk of injury to the physical or mental health of the pregnant person. I suppose that is what the scenarios have been in the last hour, given the indication of the member for Black to remove that third area. There are many scenarios there which have been identified that, if that is removed, would not be able to proceed to a termination.

The Hon. A. PICCOLO: Just to clarify and make sure I am understanding this correctly, under those scenarios you have described the foetus or baby, which otherwise could live, could be terminated?

The Hon. V.A. CHAPMAN: Sorry, could you ask the question again?

The Hon. A. PICCOLO: Under the three scenarios you just provided, the foetus, baby—whatever language you like to use—which otherwise could live, could be terminated?

The Hon. V.A. CHAPMAN: The diagnostic process in relation to the foetal abnormality may take up to the 25, 26 weeks to complete for the purposes of being able to identify how bad this is going to be. I am paraphrasing that, but I think you understand. A termination could be recommended at that point. In relation to the life threatening—

The Hon. A. PICCOLO: Sorry, I am not sure you have perhaps understood my question.

The Hon. V.A. CHAPMAN: No, perhaps I did not.

The Hon. A. PICCOLO: What you just said to me is not answering the question I asked. The question I asked was: under the scenarios where a foetus or a baby would be otherwise whatever word you would use—not viable, but could actually live if it left the womb—under what circumstances could that baby or foetus be terminated under those scenarios you have provided?

The Hon. V.A. CHAPMAN: The mother is going to die.

The Hon. A. PICCOLO: Right, yes.

The Hon. V.A. CHAPMAN: The foetal anomaly, that is, it is then diagnosed as actually having a condition that raises, in the words here, 'serious foetal anomalies associated with the pregnancy,' and the third is, if there is a significant risk of injury to the physical or mental health of the mother, that is, the pregnant woman.

The CHAIR: It is my view that there have been more than enough questions on the amendment to the amendment. Unless somebody else springs to their feet with another idea, my plan is to put the amendment in the name of the Minister for Environment and Water. I understand there is some cross—

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

That the committee report progress.

The committee divided on the motion:

While the division bells were ringing:

The CHAIR: Before I do anything else, I am going to remind members in the public gallery that they must remain seated during proceedings, please. You are very welcome to be in the building and we appreciate your interest in the debate, but you need to remain seated. The record of the vote will be publicly available at some point soon.

Ayes 18

Noes 27

Majority 9

AYES
Bell, T.S. Brock, G.G. Brown, M.E.
Cowdrey, M.J. Cregan, D. Duluk, S.
Knoll, S.K. Koutsantonis, A. Michaels, A.
Mullighan, S.C. Murray, S. Patterson, S.J.R.
Pederick, A.S. Piccolo, A. Power, C.
Speirs, D.J. (teller) Stinson, J.M. Tarzia, V.A.
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. Harvey, R.M. 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.
Szakacs, J.K. Teague, J.B. van Holst Pellekaan, D.C.
Whetstone, T.J. Wingard, C.L. Wortley, D.

Motion thus negatived.

The CHAIR: In which case, my intention is to put the amendment standing in the name of the Minister for Environment. It is an amendment to the amendment standing in the name of the Attorney-General.

The committee divided on the amendment to the amendment:

Ayes 20

Noes 26

Majority 6

AYES
Bell, T.S. Brock, G.G. Brown, M.E.
Cowdrey, M.J. Cregan, D. Duluk, S.
Ellis, F.J. Knoll, S.K. Koutsantonis, A.
Malinauskas, P. Michaels, A. Mullighan, S.C.
Murray, S. Patterson, S.J.R. Pederick, A.S.
Piccolo, A. Power, C. Speirs, D.J. (teller)
Tarzia, V.A. 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. 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. Sanderson, R. Stinson, J.M.
Szakacs, J.K. Teague, J.B. Whetstone, T.J.
Wingard, C.L. Wortley, D.

Amendment to the amendment thus negatived.

The CHAIR: We next come to the amendment standing in the name of the Attorney-General, amendment No. 2 on schedule (7).

Amendment carried.

The CHAIR: Attorney, are you ready to move amendment No. 3 standing in your name?

The Hon. V.A. CHAPMAN: I withdraw amendment No. 3. It relates to the matters that we canvassed that the member for Lee had raised, which I indicated we would leave in, so I withdraw amendment No. 3. In relation to amendment No. 4, really this is just consequential to the amendment that we have just made. Mr Chair, my understanding is that I am withdrawing. I note the amendment is the same as the member for Black's and he is also not proceeding with his.

The CHAIR: You are simply not proceeding, Attorney, with your proposed amendment and I would probably prefer to hear from the Minister for Environment as to what he intends to do. The member for Schubert has the call.

The Hon. D.J. SPEIRS: As I understand, what we are doing here is we have passed the Attorney-General's amendment No. 2. We have passed the [AG-1] amendment No. 2 from 110(7) from the Attorney. We are now not progressing with amendment No. 3. I would ask the Attorney: if this amendment is not progressed, essentially what we are doing is leaving in the medically appropriate test as well as all the other tests we have just voted to insert. I think we have just had a debate for the past four hours about how those two things are different; one is open and leaves it to doctors and the other enumerates a list of circumstances in which late-term abortion would be acceptable.

Now, with the Attorney not moving amendment No. 3, we are in a situation where we have both tests, which to me means we would have two separate tests. I do not know how those two things interact with each other, but I think we have just spent four hours deciding that those two things are two separate tests that may be incongruous with each other.

The CHAIR: I will take that as a comment, member for Schubert.

Mr KNOLL: I suppose the question would be: if—

The CHAIR: But my point is that the Attorney has indicated to the committee that she is not proceeding with her amendment, so we then really have nothing to speak to.

Mr KNOLL: The questions then are: is amendment No. 3 [AG-1] not contingent on amendment No. 2 having now passed, and is there a degree of incongruity, Attorney-General, between having now passed amendment No. 2 and failing to pass amendment No. 3? Do we not create two separate tests?

The CHAIR: Well, we did not fail to pass it, member for Schubert. It was—

Mr KNOLL: Sorry, failed to move the amendment.

The CHAIR: —simply withdrawn.

Mr KNOLL: Sure, but the question remains the same.

The Hon. V.A. CHAPMAN: I think I understand. I am happy to clarify this so that it is absolutely clear. We have introduced a set of prescriptors, which is the clause we have just passed, and it sets out a prescription. I have repeatedly said throughout this debate, and the medical professionals here today confirm, that they can take into account all those prescriptors of dealing with those 'in all the circumstances' and 'qualify'—it has a 'qualify' under one of those headings—but their standard still is that it has to be medically appropriate and that they follow their own guidelines.

It has been asked that there be some way of ensuring that there is an obligation to comply with those in our statute, and we have been happy to do that. Is there an overlap? Probably, but we do not see it as acting in a manner to cause confusion on that.

The CHAIR: Before I call the member for Schubert, I would just like to inquire of the committee: we have two other proposed amendments that read exactly the same as the one the Attorney has just decided not to proceed with; one is standing in the name of the Minister for Environment and the other one is standing in the name of the member for West Torrens. What I am looking for is an indication of whether either of those two members wish to proceed. They are not proceeding either. I call the member for Schubert.

Mr KNOLL: I will try to explain to the house at least my understanding of what it is that we are now seeking to do. What we have just done is get rid of 6(1)(a) and (b), where 6(1)(a) talks abouts medical practitioners considering that in all the circumstances the termination is medically appropriate, and 6(1)(b) also uses the term 'medically appropriate'. We have just deleted those two paragraphs, and we have replaced them with an enumerated list, but in not moving three sets of amendment No. 3 we are now leaving in a clause that states, 'In considering whether a termination is medically appropriate,' which is obviously a reference to the preceding clause we just got rid of. We are now making reference to something that no longer exists.

To my mind, we are now having a test of whether something is medically appropriate where that circumstance is not actually referred to in the previous part of the clause. Again, especially with the way these have been drafted by parliamentary counsel, it seems very much to me that these amendments are consequential, i.e., if you vote for one you have to vote to do the other one otherwise we have a bill that does not make sense.

The Hon. V.A. CHAPMAN: I can only reaffirm that I have taken advice. I have all the experts here. It can stay. I am happy for it to stay. I appreciate the member's concern, but it can stay.

Dr CLOSE: If I can just ask the Attorney, I think the confusion is being caused by the term 'medically appropriate', which had previously existed in the original subclause (1) and is now no longer in subclause (1) because of the vote we have just had. I think the confusion is: is that a term that only exists because it was in subclause (1), or is it a term that has meaning to a doctor or obstetrician or so on in considering what they will advise the woman and choose to do?

It is then that we have made a decision about circumstances under which the termination can take place. We have made that decision as a chamber. Further, whether that termination is medically appropriate, the medical practitioner must consider the things that we know they are required to consider under their professional codes of practice anyway.

The question is: does 'medically appropriate' have meaning to doctors in that sense, given the new subclause (1)? I think you have been pretty clear 'yes', but I would like another opportunity for it to be absolutely explicit that 'medically appropriate' was not a term created for the first time for the first version of this bill but is one that exists and has meaning irrespective of the wording of the first subclause.

The Hon. V.A. CHAPMAN: In short, yes and yes.

The CHAIR: I am going to ask the Attorney now if she would move to amendment No. 4 standing in her name, because as a committee we need to be speaking to a question.

The Hon. V.A. CHAPMAN: Absolutely. Having withdrawn amendment No. 3, I move:

Amendment No 4 [AG–1]—

Page 4, lines 31 to 37 [clause 6(3)]—Delete subclause (3) and substitute:

(3) Without limiting section 13 of the Consent to Medical Treatment and Palliative Care Act 1995, a medical practitioner may, in an emergency, perform a termination on a person who is more than 22 weeks and 6 days pregnant, without complying with paragraphs (b) and (c) of subsection (1).

This sets out another matter that we canvassed at length, which again is just consequential to the decision that we have now made in adding in the new subclause (1) but otherwise is pretty much the same.

Mr KNOLL: In speaking on clause 6 as we are now understanding it, clause 6(2)(b) provides:

(b) the professional standards and guidelines that apply to the medical practitioner in relation to the performance of the termination.

Could the professional standards and guidelines include RANZCOG's statement on late-term abortion that we have been discussing? I think there are some in this house who would wish that to be enumerated. Would that apply? Is that something that subclause (2)(b) could or does refer to?

The Hon. V.A. CHAPMAN: Yes, it does.

The CHAIR: Minister for Environment, you have a couple of things in front of me still. You can either move amendment No. 4 in an amended form or you could move to amend the Attorney's amendment.

The Hon. D.J. SPEIRS: And the third option is that I could withdraw those amendments.

The CHAIR: You simply would not proceed.

The Hon. D.J. SPEIRS: Yes. I will not proceed with those.

The CHAIR: With either of those?

The Hon. D.J. SPEIRS: No.

Amendment carried; clause as amended passed.

New clause 6A.

The Hon. A. KOUTSANTONIS: I move:

Amendment No 1 [Koutsantonis–1]—

Page 4 after line 37—After clause 6 insert:

6A—Requirement to preserve the life of a baby in certain circumstances

If a termination is performed—

(a) on a person who is more than 22 weeks and 6 days pregnant; and

(b) a baby is born as a result of the termination; and

(c) the baby has a reasonable prospect of living without experiencing—

(i) serious anomalies that are incompatible with survival after birth; or

(ii) serious, incurable health issues that will cause significant pain and suffering or other substantial hardship,

reasonable endeavours must be used in an attempt to preserve the life of the baby.

I am deeply disappointed that the member for Black was unsuccessful, probably the only time I will be disappointed he is unsuccessful. But given that the house was unable to accept his amendment, I have a new clause 6A to insert which is a requirement to preserve the life of a baby in certain circumstances.

Many of you may have received the frequently asked questions distributed kindly by the Attorney-General about what actually happens during late-term abortions. I read this out during the second reading contribution, I think, and I quote:

In later term terminations, either an induction of labour or surgery will be used.

If induction of labour is the chosen method of termination, the most usual outcome in this situation is that the baby is stillborn—

that is, the baby is born dead—

In this instance, palliative care is offered—

the baby is born alive—

the baby born it is wrapped in a blanket and the mother is given the opportunity to hold the baby—

and as the Attorney said, nurse it to death—

as the baby dies. In some instances in late termination feticide is undertaken which means the baby will be stillborn.

My amendment, given that the member for Black's amendment is unsuccessful, is that if a healthy baby survives an abortion, we give it medical attention. It is alive. I know it sounds controversial but here we are. So it is for a person who is more than 22 weeks and six days pregnant and the baby is born as a result of a termination and the baby has a reasonable prospect of living without experiencing serious anomalies that are incompatible with survival after birth or serious incurable health issues that will cause significant pain and suffering or other substantial hardships.

My amendment asks for reasonable endeavours to be used in an attempt to preserve the life of the baby. I never thought in my 23 years I would contemplate moving an amendment like this but I feel obliged to do so. I am not attempting to keep alive or offer futile medical assistance to babies who do not have a prospect of surviving, hence why they were terminated. I am talking about babies who have gone through a termination and have survived and can survive on their own. We should be offering medical assistance.

Obviously, this would go against the wishes of the parents, I assume, given they have sought a termination but, again, it gets back to my core beliefs that I think these babies have rights. The question for the parliament to consider is whether we offer them assistance. I know it is confronting. I know it is something none of us want to think about. I know it is something that none of us thought we would be contemplating.

I did not know this happened, and when I heard it happened I did not believe it. I thought it was proponents who were trying to convince us to vote a certain way, who were just trying to shock and horror us into a certain vote. As I said earlier, the first casualty of these debates is usually the truth, on either side. I have done my research, and it does happen—rarely, not regularly. It happens rarely, but it does happen.

What we do know is that a large number of babies are aborted because of mental health issues of the mother, or for other psychological reasons, without babies having any abnormalities. All I am saying is, if they survive the termination perhaps we should do what we can to try to offer assistance, so I put this very difficult and troubling amendment to the house, as confronting as it is.

For people who are watching who have been through this process, I apologise. I am simply exercising my conscience. I hope members see fit to contemplate this. I am not going to be there the day after this baby is saved, but I think a baby saved, where we can, is worthwhile thinking about—at the very least worth debating or contemplating or voting on.

The CHAIR: Member for West Torrens, I am going to interrupt here. Given the hour, I am going to encourage the Attorney-General to move that we report progress. However, member for West Torrens, I will say that you can resume when the committee reconvenes.

The Hon. V.A. CHAPMAN: I hate to interrupt the flow of the contribution of the member for West Torrens but, given the hour, I propose that we report progress.

Progress reported; committee to sit again.


At 23:58 the house adjourned until Thursday 18 February 2021 at 11:00.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT