A Critical Analysis: Reforming Unlawful Abortion Laws in Australia

This presentation provides an overview of unlawful abortion laws in Australia, examining the current legal positions across different states and territories. It highlights the inconsistencies and complexities within the Australian legal system regarding abortion, particularly focusing on the criminalization of abortion in most states except Western Australia. The presentation discusses alternative legislation in Western Australia, which treats abortion as unlawful only when performed without justification under revised health legislation. It presents reasons for change, including the varying legality based on location, the punishment of women undergoing abortions, and the lack of exceptions for rape, incest, or fetal abnormalities in some states. Counterarguments against change emphasize the right to life and the potential for strict laws to deter unlawful abortions. The presentation concludes by recommending unified federal laws, consideration of Western Australia's legal provisions, prioritizing the welfare of women, and including exceptions for specific circumstances like rape and fetal abnormalities. The presentation uses articles, reports, legislation, and discussion papers to support its arguments.

Unlawful Abortion
Australia

Introduction
 The legality of abortion in Australia involves three
categories of criminal laws.
 ‘Unlawful abortion’ exists in the first category.
 The unlawful abortion is considered as a crime in all the
states of Australia except in Western Australia.

Current legislation in Australia
 ‘Unlawful’ administration of any poisonous or harmful
thing or to use any instrument or other means, with an
intention to procure miscarriage at any stage of
pregnancy is considered as a crime (Parliament of
Australia, 1998).
 Supplying and procuring of anything with an intention
to be utilized unlawfully for the purpose of procuring a
miscarriage, is also considered as a crime.

Contd..
 Crime of unlawful abortion to be punishable by prolonged
periods of imprisonment.
 In Victoria, the punishment is imprisonment of 5 years for the
woman & abortionist and imprisonment of 1 year to the
person supplying or procuring.
 In New South Wales and the Australian Capital Territory, there
is provision of imprisonment of 10 years for the woman as
well as the abortionist & 5 years of imprisonment to the
person supplying or procuring (THE TABBOT FOUNDATION,
2018).

Contd..
 In South Australia, punishment of life imprisonment for
the woman as well as the abortionist & 3 years of
imprisonment to the person supplying or procuring.
 In the Northern Territory, the punishment is 7 years of
imprisonment for all the relevant parties.
 In Tasmania, the punishment for all associated people is
imprisonment of 21 years along with a fine as
determined by the court.

Contd..
 In Queensland, the punishment is imprisonment of 7
years for the woman, 14 years for the abortionist, and
3 years to the person supplying or procuring.
 Previously, in Western Australia, the punishments was
similar as in Queensland, but the state has amended
its legislation considering the welfare of woman (Willis,
2018).

Alternative legislations in other states of Australia
 In Western Australia, amendments in the law provides
that performing an abortion without being justified
under the revised health legislation, is unlawful.
 Now, there is a provision of a fine of $50,000 in case,
the abortionist is a qualified medical practitioner & 5
years imprisonment if not.

Contd..
 In Western Australia, the woman on whom the abortion is
performed, is not subjected to any punishments under the law of
Western Australia (Branley & Scott, 2017).
 This amendment has been made in favor of the woman suffering
through such a painful and unlawful act performed on her.
 In Western Australia, the law is strict for the abortionists and
others involved in unlawful abortion.

Contd..
 The legal procedures of Western Australia consider
abortion as legal up to 20 weeks of pregnancy.
 The women is given the chance to participate in
counselling before performing the termination.
 At least one of the parent of the women under 16 years
of age need to be informed.
 Even after 20 weeks of gestation, the abortion is legal
under certain conditions.

Reasons for change
There are three reasons that demands a change in the current
legislation of Australia regarding abortion;
 The legality of abortion depends upon where a person lives along
with the availability of the procedures because of not being
developed by the Federal Government of Australia.
 In most of the state jurisdictions in Australia, there is a provision that
the woman on whom the abortion is performed has to be punished by
law similar to the abortionist, which is not in welfare of woman
(Noble, 2018).

Contd..
 In Queensland and New South Wales, the existing law
does not consider rape, incest and fetal abnormality as
grounds for legal abortion, which is also not in the best
interests of the mother (Rizvi, 2017).
These are the reasons because of which there is a need
to make necessary changes in the existing laws.

Reasons against change
Despite laws and legislations, the abortion rates in Australia is
not declining remarkably, which requires strict implementation
of existing laws & the reasons against change are;
 Humans have the right to bring a life in this world but, it is
against human rights to take a life even of an unborn child
as it also possess life.
 The provisions of punishment in the abortion laws of
Australia can deter people of prolonged imprisonments.