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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-10-14 Daily Xml
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Bills

Termination of Pregnancy Bill

Introduction and First Reading

The Hon. J.M.A. LENSINK (Minister for Human Services) (16:44): Obtained leave and introduced a bill for an act to reform the law relating to pregnancy terminations, to regulate the conduct of health practitioners in relation to pregnancy terminations and to make related amendments to the Criminal Law Consolidation Act 1935 and the Intervention Orders (Prevention of Abuse) Act 2009. Read a first time.

Second Reading

The Hon. J.M.A. LENSINK (Minister for Human Services) (16:46): I move:

That this bill be now read a second time.

It is with honour today that I rise on behalf of the Attorney-General to introduce the Termination of Pregnancy Bill 2020. The bill repeals division 17 of the Criminal Law Consolidation Act 1935 and creates a new standalone act to regulate the termination of pregnancy as a lawful medical procedure.

Abortion law reform has been the subject of considerable discussion over recent years, both locally and interstate, and involves an extremely sensitive area of policy for the community. In 1969, South Australia became the first Australian jurisdiction to legislate for the lawful medical termination of pregnancy. Over 50 years have passed since those laws were first enacted. In that time there have been significant changes to clinical practice in this area, including improvements in medical termination methods and the modernisation of health service provision.

As a result of these developments, it is clear that South Australia's laws no longer reflect best clinical practice and have instead become a barrier to healthcare access for many women and their families. To that end, on 2 February 2019, the Attorney-General asked the South Australian Law Reform Institute to inquire into and report in relation to the topic of abortion law reform, with the aim of modernising the law in South Australia and adopting best practice reforms in relation to the lawful regulation of termination of pregnancy.

Referral of abortion law reform to SALRI for proper investigation and recommendations for reform based on best practice in this area and with the guidance of other jurisdictions was considered the most suitable way to achieve modern, effective and appropriate reform of abortion laws in South Australia. SALRI presented the government with its report on 31 October 2019. The SALRI report made 66 recommendations, including that abortion should be removed from the criminal law and treated as a public health issue.

As noted by SALRI, abortion raises many ethical, medical, legal and other issues and implications. It attracts strong, emotional and often conflicting views, both from those directly affected and the wider community. The development of a suitable legislative framework for the lawful termination of pregnancy requires sensitivity and careful consideration to ensure a moderate and suitable way forward is achieved, giving regard to the resulting impact on South Australian families.

This bill before parliament is a culmination of the work of SALRI and the government on an important matter of law reform. The government has carefully considered SALRI's report and the submissions of members of the public and stakeholders in order to present a suitable legislative framework for the lawful termination of pregnancy in South Australia.

Consistent with the recommendations of the SALRI report, the bill repeals abortion from the criminal law and creates a new standalone act to regulate the termination of pregnancy as a lawful medical procedure. In recognising that abortion should be treated as a healthcare issue, the bill makes it clear that a person who performs, consents to, assists in or attempts to perform a termination on themselves does not commit an offence. The bill is informed and guided by the principles of best clinical practice and promotes and respects patient decision-making by removing a number of barriers that currently impede access to abortion care services.

The bill allows for a medical practitioner to perform a termination on a person who is not more than 22 weeks and six days pregnant. Thereafter, the bill provides the determination may be performed by a medical practitioner on a person who is more than 22 weeks and six days pregnant where the medical practitioner has consulted with another medical practitioner and both practitioners consider that in all the circumstances the termination is medically appropriate. In determining whether a termination is medically appropriate, a medical practitioner must consider all the relevant medical circumstances and the professional standards and guidelines that apply to the medical practitioner in relation to the performance of a termination.

While SALRI recommended for the absolute removal of gestational limits, it is recognised that this is a sensitive issue and that there are divergent views on the appropriate approach. It is the government's view that the gestational limit of 22 weeks and six days most closely aligns with current clinical practice in other Australian jurisdictions.

Importantly, the bill will allow for a registered health practitioner to perform a termination on a person who is not more than 63 days pregnant by administering a prescription drug or by prescribing a drug, provided that the practitioner is acting in the ordinary scope of their profession and is authorised to do so under the Controlled Substances Act 1984. This position reflects SALRI's recommendation that the categories of persons authorised to perform terminations should not be confined to medical practitioners but should, where appropriate, include other registered health practitioners who are suitably credentialled to perform such procedures within the ordinary scope of their profession.

In keeping with modern health practices, the bill removes a number of outdated requirements which currently act as a barrier to access for women, especially in rural and regional communities, including that the woman be personally examined by two medical practitioners prior to seeking a termination, and that the woman must have resided in the state for at least two months prior to a termination.

The bill also removes the requirement for terminations to be carried out in a prescribed hospital. This represents an important step forward in removing restrictions in relation to the use of telemedicine in respect of abortion care services in South Australia, and makes it easier for women living in rural and regional communities to access the health care they need. In accordance with the SALRI recommendations, the bill preserves the right of registered health practitioners to conscientiously object to perform, assist in, or provide advice in relation to a termination of pregnancy.

In circumstances where a registered health practitioner conscientiously objects to a termination of pregnancy, the bill requires that the practitioner immediately disclose their conscientious objection to the patient. Furthermore, in the case of an objection to performing a termination or providing advice about the performance of a termination, the bill requires the practitioner to either transfer the care of the patient to another registered health practitioner who, in the first practitioner's opinion, can provide the requested service and does not hold a conscientious objection, or provide the patient with information on how to locate or contact such a registered health practitioner.

For the avoidance of doubt, the bill provides that the right of conscientious objection does not extend to override any duty owed by a registered health practitioner to otherwise perform or assist in the performance of a termination in an emergency or to provide aftercare or any ancillary treatment associated with the termination of pregnancy. The bill establishes an offence for unqualified persons who perform, or assist in the performance of, a termination.

The government agrees with SALRI that there is a clear public interest in protecting the public from dangerous and unsafe medical practices carried out by persons who are not authorised or qualified to carry out terminations of pregnancy. However, the bill also ensures that proceedings for the offence will only be able to be initiated with the written consent of the Director of Public Prosecutions. This is an important safeguard to ensure that proceedings for the offence will only be instituted in circumstances where it is in the public interest for the offence to be prosecuted.

Related amendments have also been made to the Intervention Orders (Prevention of Abuse) Act 2009 to expressly include coercive conduct in relation to the termination of a pregnancy as an act of abuse within the meaning of the act. Provision has also been made for the publication and use of information relating to terminations of pregnancy. These reforms represent a significant step forward in removing barriers to access for women and improving the availability of abortion health services across South Australia, particularly for rural and regional areas of the state.

Consistent with the recommendations of the SALRI report, the bill reflects current best clinical practice, promotes patient decision-making and respects the individual choice and autonomy of the patient while ensuring that there are appropriate safeguarding measures in place where necessary.

Can I advise honourable members that I understand that there is some consensus for the Legislative Council to progress this bill. I therefore request that honourable members be prepared to do their second reading speeches in November so that we will have a chance to go through the committee stage in this calendar year. I commend the bill to members and seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause defines certain terms used in the measure.

4—Interaction with other Acts

The measure applies in addition to the Consent to Medical Treatment and Palliative Care Act 1995, the Controlled Substances Act 1984 and other Acts.

Part 2—Termination of pregnancies

Division 1—Lawful termination of pregnancies

5—Terminations may be lawfully performed in South Australia

This clause sets out the circumstances in which terminations can be lawfully performed in the State.

6—Terminations by medical practitioner from 22 weeks and 6 days

This clause contains special provisions relating to terminations by a medical practitioner where the person is more than 22 weeks and 6 days pregnant.

7—Registered health practitioners who may assist

A registered health practitioner who performs a termination may be assisted by another registered health practitioner acting in the ordinary course of their profession.

8—Registered health practitioner may refuse to perform or assist in terminations

This clause allows a registered health practitioner to conscientiously object to performing or assisting in the performance of a termination. The section does not however limit any duty owed by a registered health practitioner to perform, or to assist in the performance of, a termination in an emergency or to provide after care or ancillary medical treatment associated with a termination.

9—Protection from liability

This clause protects registered health practitioners from liability who act in accordance with this Act to either be involved in the performance of a termination or refuse to be involved in the performance of a termination. Liability includes that arising under disciplinary proceedings or similar proceedings.

Division 2—Offences relating to unlawful termination of pregnancies

10—Termination of pregnancy by unqualified person

This clause creates an offence for the performance of a termination or assistance with a termination by an unqualified person.

11—DPP's consent required for prosecution under Part

The prosecution of an offence under this part requires the Director of Public Prosecution's written consent under this clause.

Division 3—Protection from criminal liability

12—Person does not commit offence for termination on themselves

This clause removes liability for a person involved in a termination conducted on themselves.

Part 3—Miscellaneous

13—Conduct and performance of registered health practitioners

This clause provides factors that regard may be had to when considering a matter under an Act about a registered health practitioner's professional conduct or performance.

14—Restrictions on publication of certain information

This clause creates an offence to publish identifying information or data regarding a person involved in a termination.

15—Confidentiality

This clause proposes confidentiality requirements in relation to personal information obtained in connection to the Act. It provides for exceptions to confidentiality, including where required or authorised by or under law.

16—Review of Act

This is a review provision that requires the Minister to cause a review of this Act on the expiry of 5 years from its commencement.

17—Regulations

This is a regulation making power provision. It includes the grant of power to make regulations which require any registered health practitioner, hospital or private day procedure centre to collect and provide the Minister or the Department with data and statistics in relation to services connected with the performance of terminations; and require reports or information of any other kind to be provided to the Minister or the Department.

Schedule 1—Related amendments Part 1—Preliminary

1—Amendment provisions

This clause is formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

2—Amendment of section 12A—Causing death by an intentional act of violence

The proposed amendment removes a reference to abortion as a criminal offence under section 81(2) of the principal Act.

3—Repeal of Part 3 Division 17

The proposed repeal removes the division relating to abortion from the principal Act.

4—Amendment of Schedule 11—Abolition of certain offences

The proposed amendment abolishes the common law offence of abortion.

Part 3—Amendment of Intervention Orders (Prevention of Abuse) Act 2009

5—Amendment of section 8—Meaning of abuse—domestic and non-domestic

The proposed amendment inserts into the principal Act's definition of an act of abuse against a person resulting in emotional or psychological harm as including coercing a person to terminate a pregnancy and coercing a person to not terminate a pregnancy.

Debate adjourned on motion of Hon. I.K. Hunter.

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