Under Queensland law, abortion is illegal unless it is performed under ‘lawful’ circumstances. Queensland courts have interpreted lawful circumstances as meaning circumstances where an abortion is necessary to preserve a woman from danger to her life or her physical or mental health. Under the Queensland Criminal Code 1899, there are currently three provisions that relate to illegal abortions. However, in June 2018 the Queensland Law Reform Commission handed down a report on abortion laws in Queensland recommending that these three provisions be repealed. The Palaszczuk government last month announced that all the recommendations of the report will be implemented.
Current abortion laws
Under existing Queensland criminal law, the following criminal offences relating to abortions exist.
Attempts to procure abortion
Under Section 224, it is an offence to attempt to procure the miscarriage of a woman. This provision covers the administering of a poison or the use of any kind of force in order to bring about a miscarriage. This offence is punishable with a maximum of imprisonment for 7 years.
Under Section 225, it is an offence for a woman to attempt to bring about her own miscarriage. This offence also carries a maximum penalty of imprisonment for 7 years.
Supplying drugs or instruments to procure abortion
Under Section 226, it is an offence to unlawfully supply to or procure for a person any thing, knowing that it is intended to be used unlawfully to procure the miscarriage of a woman. This offence is a misdemeanour and carries a maximum penalty of imprisonment for 3 years.
What is a ‘lawful’ abortion?
Under the current law, a doctor may lawfully perform an abortion if it is necessary to preserve the life of a woman or to protect her from danger to her physical or mental health.
Rape, incest and foetal abnormality are not currently lawful grounds for an abortion.
In practice, doctors in Queensland commonly ‘turn a blind eye’ to abortions being performed in circumstances where they are not ‘necessary’ under the legal test. Reportedly half of the abortions performed in Queensland are for unplanned pregnancies in young women. However, doctors and women’s rights advocates have long been calling for the law to be changed so that this isn’t necessary.
It is also possible for women in Queensland to obtain the abortion pill RU486 by mail order, despite the existence of criminal laws in this state.
Queensland Law Reform Commission Report on abortion laws
The report of the QLRC recommended that the three existing abortion offences in the Criminal Code 1899 be repealed and replaced by a single offence for an ‘unqualified person’ to perform or assist in performing a termination. 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.
The report also recommended that safe access zones of 150 metres be established around abortion clinics and that it be made an offence to engage in prohibited conduct within these safe access zones. Such offences would criminalise the common conduct of anti-Abortion activists accosting women on their way into an abortion clinic or publicly airing their views outside such clinics.
The report recommended that doctor who are requested to perform a termination but have a conscientious objection to doing so, be required to disclose their conscientious objection to the patient and provide a referral to another doctor who can provide the service.
The recommendations were made in line with international human rights obligations relating to the reasonable access to safe termination services. The committee stated that termination should be treated as a health issue and not as a criminal matter and that women’s autonomy and health should be promoted.
New abortion laws expected to pass late this year
In July 2018, the Palasczcuk government announced that cabinet had accepted all of the QLRC’s recommendations. The bill is expected to pass by the end of this year.
The Australian Medical Association, the Human Rights Law Centre and the Queensland Nurses Union have welcomed the announcement as bringing Queensland’s criminal laws into line with modern values. Right-to-life groups have criticised the bill, particularly its provisions for termination after 22 weeks, calling the legislation ‘radical’.