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Abortion and the criminal law.

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Legal issues
Editor: Danuta Mendelson MA, PhD, LLM
Associate Professor, School of Law, Faculty of Business and Law, Deakin University

ABORTION AND THE CRIMINAL LAW

The criminal law in relation to abortion continues to attract political, social and legal debate. In all
Australian jurisdictions save the Australian Capital Territory, “procuring a miscarriage” remains a
crime. Year after year, the majority of criminal law students in the author’s classes are astounded to
learn that abortion is a crime and that it is not available “on demand”. This common perception
indicates that this is one area of the criminal law where practice does not fully accord with what is
prohibited, as criminal prosecutions for abortion and child destruction are rare. For example, in
Victoria, there has been only one prosecution against a Melbourne doctor instituted since 1973 and
that was dismissed in the Magistrates’ Court, and charges against Perth doctors, Victor Chan and Ho
Peng Lee, were dropped in July 1998 after a blaze of publicity.1
In assessing what the law should be in relation to abortion, the Model Criminal Code Officers
Committee remarked that “the political process in Australia has been unable to deal with the issue for
a century, and that position is unlikely to change”.2 There seems to be a general tendency to maintain
the status quo rather than to bring the law closer to what happens in practice because of the risk of
provoking zealous responses by disparate lobby groups.
However, recent actions by politicians have served to reignite questions as to what the law should
be in relation to the termination of unwanted pregnancies. On 16 March 2004, the Commonwealth
Health Minister Tony Abbott told Adelaide University students that the 100,000 abortions performed
in Australia each year were a “national tragedy”3 and National Party Senator Julian McGauran has
sent a complaint to the Medical Practitioners Board concerning a late-term abortion that was
performed at the Royal Women’s Hospital in February 2000.4
The Australian Capital Territory is the only Australian jurisdiction that has completely
decriminalised abortion with the enactment of the Crimes (Abolition of Offence of Abortion) Act 2002
(ACT). 5 Three other Australian jurisdictions have reformed their laws, but not gone as far as the
Australian Capital Territory. The Northern Territory, South Australia and Tasmania have retained the
crime of procuring a miscarriage, but have provisions relating to the lawful medical termination of
pregnancy. Western Australia makes abortion a crime unless it is “performed by a medical
practitioner in good faith and with reasonable care and skill”.
This Column outlines the current criminal law relating to abortion and examines the legal process
behind its decriminalisation in the Australian Capital Territory.

1
Waller L, “Tracy Maund Lecture” (2002) 28 (1) Monash University Law Review 149 at 158-159.
2
Model Criminal Code Officers Committee, Discussion Paper, Ch 5, Non-fatal Offences Against the Person (1996) p 81.
3
Abbott T, “Opinion: Rate of Abortion Highlights Our Moral Failings”, The Australian, 17 March 2004; Shaw M,
“Termination Funding to Remain: Howard”, The Age, 19 March 2004, p 6; Editorial, “Tony Abbott Steps on a Moral
Minefield”, The Age, 19 March 2004; Dunn A, “At the Heart of a Delicate Issue”, The Saturday Age,
20 March 2004, Insight p 3.
4
Munro C, “Abortion File Motive Queried”, The Age, 19 March 2004, p 6. Jacinta Heffey ruled in December 2001 that the
Coroners Court had no jurisdiction to investigate the matter. The woman involved refused to allow her medical records to be
given to the Medical Practitioners Board and the Victorian Coroner was criticised for releasing records to Mr McGauran:
Munro C, “Coroner Hit Over Abortion Records”, The Saturday Age, 20 March 2004, p 1. On this case, see also Sweet R,
“Legal Issues in Reproductive Rights” (2002) 9 (3) JLM 266; Lynch M and McKelvie H, “The Coroner and the Unborn Child”
(2000) 8 (2) JLM 153.
5
Rankin MJ, “Recent Developments in Australian Abortion Law: Tasmania and the Australian Capital Territory” (2003) 29 (2)
Monash University Law Review 316.

(2004) 11 JLM 409 409 ©

Legal issues

Current legal regimes

In general, in jurisdictions apart from the Australian Capital Territory, abortion is not available “on
demand”, but must be justified in terms of necessity gauged by examining the risks to the health of
the pregnant woman. There are three indictable offences connected with abortion:
• procuring one’s own miscarriage; 6
• procuring another’s miscarriage;7 and
• the supply of means for a miscarriage with knowledge that those means are intended to be used
for that purpose.8
The Model Criminal Code Officers Committee has pointed out that the last offence is redundant,
given the breadth of the existing law of complicity.9
Current abortion provisions are cast in terms of the pregnant woman10 or other person unlawfully
administering or causing to be taken any poison, drug or noxious thing or using any instrument, force
of any kind or other means with an intention to cause a miscarriage.
The term “miscarriage” in law is generally taken to refer to the premature ending of a pregnancy
that is presumed to begin when the ovum is fertilised.11 The use of modern techniques such as the
intra-uterine device, prostaglandin, the morning-after pill and the drug RU-486 which do not prevent
conception but which operate after the fertilisation of the ovum by the sperm has taken place, have
raised doubts about the viability of this definition of miscarriage. It has been argued that the use of
such techniques amounts to procuring a miscarriage. 12 However, there is some, albeit slight, support
for the view that any technique used before implantation of the fertilised egg into the womb is not an
abortifacient because conception actually occurs upon nidation13 or implantation.14
In relation to the fault element, the offences of procuring one’s own miscarriage and procuring
another’s miscarriage both require an intention to procure such miscarriage.
Unlawful abortions
In all jurisdictions apart from the Australian Capital Territory, the prosecution must prove that the
abortion was “unlawful”. In practice, this has meant looking at the extent to which medical
terminations of pregnancy can be considered “lawful”. The main rationale for considering an abortion

6
Crimes Act 1900 (NSW), s 82; Criminal Code (Qld), s 225; Criminal Law Consolidation Act 1935 (SA), s 81(1); Criminal
Code (Tas), s 134(1); Crimes Act 1958 (Vic), s 65. This offence does not appear to exist in the Northern Territory and Western
Australia as s 172 of the Criminal Code (NT) and s 199(2) of the Criminal Code (WA) only prohibit “any person” and “a
person” respectively from procuring a miscarriage of a woman or girl/performing an unlawful abortion. Section 174 of the
Criminal Code (NT), s 82A of the Criminal Law Consolidation Act 1935 (SA) and s 344 of the Health Act 1911 (WA) deal
with the medical termination of pregnancy.
7
Crimes Act 1900 (NSW), s 83; Criminal Code (NT), s 172; Criminal Code (Qld), s 224; Criminal Law Consolidation Act
1935 (SA), s 81(2); Criminal Code (Tas), s 134(2); Crimes Act 1958 (Vic), s 65; Criminal Code (WA), s 199 (perform an
abortion).
8
Crimes Act 1900 (NSW), s 84; Criminal Code (NT), s 173; Criminal Code (Qld), s 226; Criminal Law Consolidation Act
1935 (SA), s 82; Criminal Code (Tas), s 135; Crimes Act 1958 (Vic), s 66. A similar provision was repealed in Western
Australia by the Acts Amendment (Abortion) Act 1998 (WA).
9
See n 2, p 80.
10
In Queensland, this prohibition applies whether or not the woman is pregnant: Criminal Code (Qld), s 225. This offence does
not appear to apply in the Northern Territory or Western Australia.
11
Cica N, “The Inadequacies of Australian Abortion Law” (1991) 5 Australian Journal of Family Law 37 at 50. See further
Martyn K, “Technological Advances and Roe v Wade: The Need to Rethink Abortion Law” (1982) 29 University of California
Los Angeles Law Review 1194; Rhoden N, “Trimesters and Technology: Revamping Roe v Wade” (1986) 95 Yale LJ 639;
Rubenfeld J, “On the Legal Status of the Proposition that ‘Life Begins at Conception’” (1991) 43 Stanford Law Review 599.
12
Tunkel V, “Modern Anti-pregnancy Techniques and the Criminal Law” [1974] Crim LR 461 at 462.
13
The embedding of the early embryo into the uterine mucosa. See Oxford English Dictionary (2nd ed, Clarendon Press,
Oxford, 1988), Vol X, p 397.
14
In R v Price [1969] 1 QB 541, the court implied that the use of an intra-uterine device would not amount to an abortion
merely because it operates after the ovum is fertilised by acting to prevent nidation or implantation. See further Williams G,
Textbook of Criminal Law (2nd ed, Stevens & Sons, London, 1983) pp 294-295; Cook R, “Legal Abortion: Limits and
Contributions to Human Life” in Porter R and O’Connor M (eds), Ciba Foundation Symposium 115 – Abortion: Medical
Progress and Social Implications (Pitman Publishing, London, 1985) p 212.

© 410 (2004) 11 JLM 409

 Legal issues

lawful depends upon the concept of necessity. The Northern Territory, South Australia, Tasmania and
Western Australia have special provisions for the medical termination of pregnancy which will be
examined in the next section, but a broad concept of necessity forms an essential part of these
provisions.
In New South Wales and Victoria, the defence of necessity is available at common law to
abortion-related offences. In R v Davidson [1969] VR 667 at 671, Menhennitt J defined the element of
necessity in terms of an honest and reasonable belief that the steps taken are required to preserve the
woman fro m some serious danger and are proportionate to the need to preserve the woman from
serious danger.15 The requirement of proportionality may have been included to emphasise that the
later the abortion takes place, the greater the danger for the health of the woman.16 This part of the
test, however, seems largely redundant as, if the test of necessity is satisfied because the termination
was needed to preserve the woman from serious danger to life or health, then it would seem that the
termination was proportionate as well.
The danger may be existing or potential and means serious danger to physical or mental health
and not merely a normal danger associated with pregnancy and childbirth.17 Economic and social
factors may be taken into account in assessing the question of serious danger, but they are not in
themselves sufficient grounds for rendering a termination lawful.18 As McGuire J noted in R v Bayliss
(1986) 9 QL 8 at 45, this test does not allow abortion on demand.
Reform of the law in the Northern Territory, South Australia, Tasmania and
Western Australia
The Northern Territory, South Australia and Tasmania retain the offence of procuring a miscarriage,19
but include provisions stating that medical terminations of pregnancy are lawful providing certain
conditions are met.20
Under s 174(1)(b) of the Criminal Code (NT), a medical termination will be lawful where the
woman has been pregnant for not more than 23 weeks and the medical practitioner is of the opinion,
formed in good faith, that the termination of the pregnancy is immediately necessary to prevent grave
injury to the woman’s physical or mental health. In the Northern Territory, there is also a statutory
defence of necessity which applies to medical practitioners who terminate a pregnancy in good faith
for the purpose only of preserving the woman’s life. 21
Section 82A(1)(b) of the Criminal Law Consolidation Act 1935 (SA) requires that the
termination be performed in good faith where immediately necessary to save the life, or to prevent
grave injury to the physical or mental health, of the pregnant woman. Section 164(1) of the Criminal
Code (Tas) is headed “medical termination of pregnancy” and it states that “a person is not guilty of a
crime in relation to the termination of a pregnancy which is legally justified”.
An abortion will be lawful in the Northern Territory, South Australia and Tasmania where the
termination of the pregnancy is carried out in a hospital and certain conditions are met. In the
Northern Territory and South Australia, in the opinion of two medical practitioners, the termination
must be necessary either because the continuance of the pregnancy would cause a greater risk to the
life, or physical or mental health, of the woman than if the pregnancy were terminated, or because
there is a substantial risk that if the pregnancy were not terminated, the child would suffer from such
physical or mental abnormalities as to be seriously handicapped.22 Section 164(2) of the Criminal

15
See also R v Wald (1971) 3 DCR (NSW) 25 at 29; K v Minister for Youth and Community Services [1982] 1 NSWLR 311 at
318; CES v Superclinics Australia Pty Ltd (1995) 38 NSWLR 47; Rankin MJ, “Contemporary Australian Abortion Law: The
Description of a Crime and the Negation of a Woman’s Right to Abortion” (2001) 27 (2) Monash University Law Review 229
at 232-242.
16
Elliott I, “Australian Letter” [1969] Criminal Law Review 511 at 524-525.
17
R v Davidson [1969] VR 669 at 672 per Menhennitt J; CES v Superclinics Australia Pty Ltd (1995) 38 NSWLR 47 at 59-50
per Kirby P.
18
R v Wald (1971) 3 DCR (NSW) 25 at 29 per Levine J.
19
Criminal Code (NT), s 172; Criminal Law Consolidation Act 1935 (SA), s 81; Criminal Code (Tas), ss 134, 135.
20
Criminal Code (NT), s 174; Criminal Law Consolidation Act 1935 (SA), s 82A; Criminal Code (Tas), s 164.
21
Criminal Code (NT), s 174(1)(c).
22
Criminal Code Act 1983 (NT), s 174(1)(a); Criminal Law Consolidation Act 1935 (SA), s 82A(1)(a).

(2004) 11 JLM 409 411 ©

Legal issues

Code (Tas) states that an abortion will be legally justified if two doctors have certified that “the
continuation of the pregnancy would involve greater risk of injury to the physical or mental health of
the pregnant woman than if the pregnancy were terminated” and the woman has given informed
consent. The latter is defined in s 164(9) as consent where the doctor has provided the woman with
counselling about the medical risks concerned and referred her to counselling about other matters
relating to the termination of pregnancy and carrying a pregnancy to term.
In the Northern Territory, the woman must have been pregnant for not more than 14 weeks for
the Criminal Code section to apply. In South Australia, in determining whether the continuance of a
pregnancy would involve a risk of injury to the physical or mental health of a pregnant woman,
account may be taken of the woman’s actual or reasonably forseeable environment.23
The law relating to abortion was amended in Western Australia by the Acts Amendment
(Abortion) Act 1998 (WA). Section 199 of the Criminal Code (WA) still retains the title “Abortion”
and it states that it is unlawful to perform an abortion unless it is “performed by a medical practitioner
in good faith and with reasonable care and skill” and conforms with the provisions of the Health Act
1911 (WA). Section 334(5) of the latter Act requires the medical practitioner to offer the woman
referral to “appropriate and adequate counselling” and to explain the risks and matters associated with
the termination of pregnancy. Section 334(3) sets out that an abortion will be lawful if serious danger
to the physical or mental health of the woman concerned will result if the abortion is not performed or
the pregnancy of the woman concerned is causing serious danger to her physical or mental health.
Section 334(3) also seems to go further than the common law in stating that an abortion is justified if
the woman has given informed consent or she will suffer serious personal, family or social
consequences if the abortion is not performed.
The Australian Capital Territory legislation
On 21 August 2002, the 17-member Legislative Assembly of the Australian Capital Territory, with a
majority of nine votes to eight, passed the Crimes (Abolition of Offence of Abortion) Act 2002 (ACT).
The Act abolished ss 44 to 46 of the Crimes Act 1900 (ACT) and replaced it with s 44 which
abrogated any common law offence in relation to procuring a woman’s miscarriage. The Assembly
members were allowed to vote “according to conscience” rather than along party lines. In moving that
the legislation be passed, the Assembly’s Speaker, Wayne Berry, stated:
Ineffective and outdated law is bad law and should be ditched. It is not appropriate to allow laws to be
breached. If we believe that they are no longer to be enforced, we must do our duty and change those
laws… I do not believe that the community would countenance laws which could result in a woman
being sent to jail for 10 years because she had an abortion, nor would they accept that her doctor
should suffer the same fate for performing that abortion.24
The Crimes (Abolition of Offence of Abortion) Act 2002 (ACT) was accompanied by the insertion of
new ss 55A-55E of the Medical Practitioners Act 1930 (ACT) 25 which regulate the carrying out of
abortions. Section 55B states that a “person who is not a registered medical practitioner must not
carry out an abortion”. For a breach of this provision, the penalty is imprisonment for up to five years.
The legislature also enacted the Health Regulation (Maternal Health Information) Repeal Act 2002
(ACT) as part of its package. This Act repealed the Health Regulation (Maternal Health Information)
Act 1998 (ACT) which had originated as a Private Member’s Bill by the Independent member of the
Legislative Assembly, Bill Osborne. The 1998 Act had fewer restrictions than originally proposed by
Mr Osborne, but required counselling for women considering abortion and a 72-hour waiting period
before an abortion could be performed. The main rationale for doing away with these requirements
was that the onus on health professionals to provide information about risks pusuant to Rogers v
Whitaker (1992) 175 CLR 479 provided sufficient safeguards.26 The debate in the Assembly concerning

23
Criminal Law Consolidation Act 1935 (SA), s 82A(3).
24
Australian Capital Territory Assembly, Hansard, 12 December 2001, p 106; http://www.hansard.act.gov.au/hansard
/2002/week01/106.htm accessed March 2004.
25
Inserted by Medical Practitioners (Maternal Health) Amendment Act 2002 (ACT).
26
Australian Capital Territory Assembly, Hansard , 21 August 2002, p 2566; http://www.hansard.act.gov.au/hansard
/2002/week09/2566.htm accessed March 2004.

© 412 (2004) 11 JLM 409

 Legal issues

these provisions makes fascinating reading, given the diametrically opposed views presented.27 An
interesting point was made by the Deputy Speaker of the Assembly, Greg Cornwell, who pointed out
that because of the small number of members in the Assembly, it was feasible that the legality of
abortion could change every three years after an election.28 Given that the legislation was passed by
nine votes to eight, this is of practical concern.
Conclusion
The decision of the Australian Capital Territory to decriminalise abortion puts terminations of
pregnancies into the health rather than the criminal realm. Some would argue that this is where
abortion belongs and that it is anomalous for a woman who has her pregnancy terminated to be
considered a criminal liable for punishment of up to 10 years in prison. Others would, of course,
argue that abortion should remain a crime because of rationales based on the status of the fetus. A
midway-point attractive to politicians is that the status quo should remain rather than risk stirring up a
hornet’s nest. In this regard, the Assembly’s Speaker, Wayne Berry, stated:
We as legislators have to accept that it is our responsibility to make good law and not to sit idly by and
ignore bad law because it is controversial… It is time to send the message that we have a responsibility
to move in line with community attitudes.29
Whatever side of the fence one sits on in relation to abortion, the Australian Capital Territory’s
approach attempts to address the Model Criminal Code Officers Committee’s comment cited above
that “the political process in Australia has been unable to deal with the issue for a century”.
However, it may be that the current regime of abortion in the Australian Capital Territory will not
be in place for long. The Health Professionals Bill 2003 (ACT), which was introduced into the
Assembly on 11 December 2003 and, at the time of writing, is still being considered, proposes to
consolidate existing laws relating to health professionals and primarily deals with regulatory matters.
Clause 136 repeals the Medical Practitioners Act 1930 (ACT). The Bill in its current form does not
include provisions dealing with medical terminations of pregnancy. If the Bill is passed, it seems that
there will be a gap in the law in relation to abortion. This is an oversight that will need to be
remedied.
Bernadette McSherry BA (Hons), LLB (Hons), LLM (Melb), PhD (York),
Grad Dip Psych (Mon)
Associate Professor, Faculty of Law,
Monash University

27
Australian Capital Territory Assembly, Hansard, 21 August 2002, pp 2570-2606.
28
Australian Capital Territory Assembly, Hansard , 21 August 2002, p 2544; see http://www.hansard.act.gov.au/hansard
/2002/week09/2544.htm accessed March 2004.
29
Australian Capital Territory Assembly, Hansard , 12 December 2001, p 108; see http://www.hansard.act.gov.au/hansard/
2002/week01/106.htm accessed March 2004.

(2004) 11 JLM 409 413 ©

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