Abortion Decriminalisation (QLD) and International Human Rights P1
8th Sep 2016
On 10 May 2016, former ALP and now independent Cairns MP, Rob Pyne, introduced a private member’s bill into Queensland parliament to decriminalise abortion. Abortion and its facilitation, assistance and procurement have been criminal acts under Queensland law since 1899. Haven’t social and community standards changed in all that time? Well, “yes” and “no”.
Currently, s224 of the Criminal Code Act of 1899 entitled ‘Attempts to Procure Abortion’ provides:
‘Any person who, with intent to procure the miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a crime, and is liable to imprisonment for 14 years.’
Section 225 makes it a crime for a woman to self-administer an abortion, or to allow an abortion to be performed upon her; s226 prohibits the provision or supply of anything intended to be used to procure a miscarriage. Pyne’s bill requires the repeal of these three sections. At a rally before Parliament House on 10 May 2016, co-hosted by Australian Lawyers for Human Rights (ALHR), Mr Pyne stated: "It's not 1899, abortion should not be a crime. The world is changing very quickly and unfortunately our politicians aren't.”
Section 282 contains a defence for practitioners, where a surgical operation or medical treatment is provided in good faith and with reasonable care and skill for the patient’s benefit or to preserve the mother’s life. This defence was expanded in 2010 following the unsuccessful prosecution of a young Cairns couple in R v Leach and Brennan. Police alleged that the couple arranged for a relative to send a supply of the drugs misoprostol and mifepristone, used in medical abortions, to Australia from the Ukraine. The jury retired for less than an hour before returning not guilty verdicts for both defendants. As a result of this case the government expanded the defence in s282 to include medical abortions as well as surgical abortions.
The reality is that women are able to access pregnancy terminations in about 17 private clinics in South East Queensland. There is one public clinic that performs such services without court sanction in Cairns. However, rural and poor women are significantly marginalised by the existing laws. Mr Pyne was mobilised to act after a 12-year-old Rockhampton girl was forced to go to the Supreme Court to get permission to have an abortion in April this year. Under Queensland’s strict abortion laws, a court order was sought by the Central Queensland hospital and health service, where ‘Q’ was a patient. ‘Q’ told the court that her ‘very stressful’ pregnancy followed months of emotional turmoil during which she had run away from home, cut herself and twice attempted suicide. In the judgment published 26 April 2016 (Central Queensland Hospital and Health Service v Q  QSC 89), granting approval, Justice McMeekin stated:
“Q appears to well understand the risks involved with the procedures that are contemplated to bring about the termination. She has no wish to be a mother. Unsurprisingly she feels that she is not fitted for that task (at ).”
Deputy Premier Jackie Trad, who was also in attendance at the rally on 10 May, declared: "I am unashamedly pro-choice…What a woman decides to do with her body, in consultation with her doctor, does not belong in the criminal code.”
Notoriously, the topic of a woman’s or girl’s choice to terminate a pregnancy is a very contentious issue. However, there are multiple and varied human rights issues at stake and it is well worth exploring the jurisprudential underpinnings in international human rights law (IHRL).
Read part two of Benedict's series here.
Benedict Coyne is a human rights lawyer and advocate based in Brisbane at law firm Anderson Fredericks Turner. He is the national President of Australian Lawyers for Human Rights (ALHR). Benedict recently graduated with Distinction (the highest award) from a Master of Studies in International Human Rights Law at the University of Oxford. In 2009 he completed his undergraduate law degree at Southern Cross University and was awarded the university medal for outstanding academic achievement. Benedict is a passionate advocate for human rights both domestically and internationally and has received numerous awards for his work including the Australian Lawyers Alliance/Amnesty International 2014 National Emerging Lawyer of the Year Award and the 2015 Qld Civil Justice Award. He is also a founder of the international business and human rights consulting group “Synceritas” with a number of his Oxford University colleagues.
Disclaimer: The ALA would like to acknowledge that the image for this article is creative commons and was originally produced by Fred Jala accessed here.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).