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On 17 October 2018, the Queensland parliament passed the Termination of Pregnancy Act 2018, which overhauls abortion law in the state. Having an abortion in Queensland is no longer a criminal offence, provided it is performed by a qualified person. The new legislation also creates ‘safe access zones’ around abortion clinics, protecting women seeking to access abortion services from being harassed or shamed as they do so. The changes bring Queensland into line with other jurisdictions such as Victoria and the ACT, which have introduced laws allowing for ‘abortion on demand’.
The new abortion laws
Under the new laws, doctors may perform a termination on a woman who is not more than 22 weeks pregnant (Section 5).
Doctors may perform a termination on a woman who is more than 22 weeks pregnant if two doctors are in agreement that the termination should be performed, taking into account all the medical circumstances, the woman’s social and psychological circumstances and the professional standards and guidelines that apply.
In an emergency, a doctor can perform a termination on a woman who is more than 22 weeks pregnant without seeking the agreement of a second doctor if it is necessary to preserve the woman’s life (Section 6).
Section 8 of the act provides that if a health practitioner who has a conscientious objection to abortion is asked to perform a termination or assist in performing a termination, he or she must disclose the conscientious objection to the patient and refer her to another health practitioner who does not have a conscientious objection.
Safe access zones
The new legislation seeks to make it easier to have an abortion in Queensland by making it an offence to do certain things within 150 metres of a clinic where abortions are performed. Conduct is prohibited if it:
- Relates to terminations or could reasonably be perceived as relating to terminations; and
- Would be visible or audible to another person in, or entering or leaving, the premises; and
- Would be reasonably likely to deter a person mentioned in paragraph (b) from— (i) entering or leaving the premises; or (ii) requesting or undergoing a termination; (iii) performing, or assisting in the performance of, a termination.
It is also an offence to make or publish a recording of a person who is in, entering or leaving an abortion clinic if the recording is likely to identify the person .
The maximum penalty for any of these offences is a fine of 20 penalty units or imprisonment for one year.
Abortion by unqualified person
Under Section 319A of the act, it is an offence punishable by a maximum of seven years imprisonment for an unqualified person to perform or assist in performing an abortion. This offence includes the supply or administration of a termination drug.
However, it is no longer an offence for a woman to perform a termination on herself (Section 10).
Abortion in Queensland before the changes
Under the old legislative regime, abortion in Queensland was lawful only where it was necessary to preserve the life of the woman or to protect her from danger to her physical or mental health. However, it was common for doctors to ‘turn a blind eye’ to abortions performed that were not strictly ‘necessary’ in accordance with the legal test. Women were also able to obtain the abortion pill by mail order, despite the existence of criminal laws in the state. Doctors had long been calling for the law to be changed so that these measures would no longer be necessary.
In 2017, the Queensland Law Reform Commission recommended that the three existing abortion offences under the criminal law be repealed and replaced with a single offence relating to an abortion by an unqualified person. It recommended that doctors be permitted to perform terminations on request up to 22 weeks and after 22 weeks if the doctor considers that it should be performed in all the circumstances, or if it is an emergency. It further recommended that it should not be an offence for a woman to assist in or perform her own termination and that safe access zones be created. All of these recommendations have now been adopted.
The changes have been applauded as bringing Queensland into the 21st century and upholding a woman’s right to choose to have a termination without fear of criminal consequences.
If you need legal advice please contact Go To Court Lawyers.