WEBVTT 00:00:04.555 --> 00:00:07.624 Good evening and welcome everyone. 00:00:07.624 --> 00:00:11.328 I'm Mehreen Faruqi and I'm a Greens MP in State Parliament. 00:00:11.328 --> 00:00:14.756 I have the carriage of the Portfolio for 00:00:14.756 --> 00:00:17.087 the Status of Women for the Greens 00:00:17.087 --> 00:00:20.258 and I also have the privilege tonight of being your MC. 00:00:20.258 --> 00:00:21.383 I'll start by acknowledging 00:00:21.383 --> 00:00:23.739 the traditional owners of the land we're meeting on 00:00:23.739 --> 00:00:27.720 the Gadigal people and pay my respect to the elders past and present. 00:00:27.720 --> 00:00:30.172 This land always has been and always will be 00:00:30.172 --> 00:00:32.460 Aboriginal land. 00:00:32.460 --> 00:00:34.431 I'd also like to acknowledge a couple of my colleagues 00:00:34.431 --> 00:00:36.605 from NSW Parliament: 00:00:36.605 --> 00:00:38.963 Greg Piper, who's an Independent in the lower house 00:00:38.963 --> 00:00:41.812 and Dr John Kay, who's a Greens in the upper house. 00:00:41.812 --> 00:00:43.581 Thank you both for coming. 00:00:43.581 --> 00:00:46.295 And thank you all of you for making time tonight 00:00:46.295 --> 00:00:49.387 to come and participate in this community forum 00:00:49.387 --> 00:00:53.486 which really is about helping us unpack some of the implications 00:00:53.486 --> 00:00:56.027 of this fetal personhood law 00:00:56.027 --> 00:00:58.395 which is also known as "Zoe's Law" 00:00:58.395 --> 00:01:01.893 that we have in front of Parliament at the moment. 00:01:01.893 --> 00:01:05.467 This law is being debated in NSW Parliament at the moment 00:01:05.467 --> 00:01:08.102 so I think it's really timely that we talk about it 00:01:08.102 --> 00:01:11.118 discuss it and get enough information about it 00:01:11.118 --> 00:01:13.602 to see why it is actually inappropriate 00:01:13.602 --> 00:01:16.262 and dangerous for women's rights. 00:01:16.262 --> 00:01:18.439 The media has given quite a bit of coverage 00:01:18.439 --> 00:01:20.149 the last couple of months 00:01:20.149 --> 00:01:23.039 also NSW Bar Association and 00:01:23.039 --> 00:01:24.703 the Australian Medical Association 00:01:24.703 --> 00:01:27.745 Family Planning NSW and the Greens 00:01:27.745 --> 00:01:30.610 have come out and clearly stated their position 00:01:30.610 --> 00:01:32.721 in opposition to this Bill. 00:01:32.721 --> 00:01:35.726 There's also a coalition, a group formed by a coalition, 00:01:35.726 --> 00:01:38.560 of women's groups called Our Bodies Our Choice 00:01:38.560 --> 00:01:40.181 who are running the campaign 00:01:40.181 --> 00:01:43.136 also to provide information to the community 00:01:43.136 --> 00:01:46.238 to lobby the MPs, to provide information to them 00:01:46.238 --> 00:01:48.221 about the implications of the bill. 00:01:48.221 --> 00:01:49.958 And tonight we're really fortunate 00:01:49.958 --> 00:01:53.033 to have three excellent speakers with us 00:01:53.033 --> 00:01:56.445 who will take us through the legal, health and medical implications 00:01:56.445 --> 00:02:01.119 as well as the consequences for women's rights of this particular bill. 00:02:01.119 --> 00:02:03.959 Each of our guests is going to speak for about 10 to 15 minutes 00:02:03.959 --> 00:02:06.385 and then we'll open up for about 30 minutes to 40 minutes 00:02:06.385 --> 00:02:08.195 to have a discussion 00:02:08.195 --> 00:02:10.613 and also to ask questions of our speakers. 00:02:10.613 --> 00:02:13.394 We will be recording tonight's session 00:02:13.394 --> 00:02:16.450 and we'll make a Youtube and put it up on our website 00:02:16.450 --> 00:02:19.077 so if you have any issues being recorded 00:02:19.077 --> 00:02:20.722 it will mainly be the speakers 00:02:20.722 --> 00:02:23.867 but we might record you when you're asking your question 00:02:23.867 --> 00:02:25.918 if you have any issues with that just let us know 00:02:25.918 --> 00:02:27.637 and we'll edit you out. 00:02:27.637 --> 00:02:32.379 OK, so our first speaker for tonight is Julie Hamblin. 00:02:32.379 --> 00:02:34.987 Julie is a lawyer with more than 20 years experience 00:02:34.987 --> 00:02:37.724 advising the public and private health sectors 00:02:37.724 --> 00:02:40.675 on health law, medical negligence, clinical risk, 00:02:40.675 --> 00:02:43.081 bioethics and public health. 00:02:43.081 --> 00:02:46.279 She has held a number of government appointments in the health sector 00:02:46.279 --> 00:02:49.503 including the Australian Research Integrity Committee, 00:02:49.503 --> 00:02:54.966 the Australian National Council on HIV/AIDS and Related Diseases, 00:02:54.966 --> 00:02:58.692 and the board of the former Central Sydney Area Health Service. 00:02:58.692 --> 00:03:01.062 In December 2012, Julie was appointed to 00:03:01.062 --> 00:03:04.560 the NSW Clinical Ethics Advisory Panel. 00:03:04.560 --> 00:03:07.987 Julie has a long standing interest in sexual and reproductive health, 00:03:07.987 --> 00:03:10.436 and has undertaken consultancy work with 00:03:10.436 --> 00:03:13.081 HIV and related sexual health issues 00:03:13.081 --> 00:03:18.037 in more than 20 countries, in Asia, the Pacific, Africa and Eastern Europe. 00:03:18.037 --> 00:03:19.825 So please warmly welcome Julie Hamblin. 00:03:19.825 --> 00:03:26.338 [applause] 00:03:31.438 --> 00:03:34.332 Thank you Mehreen, thank you everyone for coming along tonight 00:03:34.332 --> 00:03:37.450 to talk about this really important issue 00:03:37.450 --> 00:03:38.913 it's something that's very close to my heart 00:03:38.913 --> 00:03:41.743 and I, um, think it's so important that 00:03:41.743 --> 00:03:43.577 we all understand exactly what is at stake 00:03:43.577 --> 00:03:47.065 with the bill that is before NSW Parliament at the moment. 00:03:47.065 --> 00:03:49.509 What I wanted to do in my comments is 00:03:49.509 --> 00:03:51.796 to talk first of all very briefly about 00:03:51.796 --> 00:03:55.629 how the law currently regards fetuses 00:03:55.629 --> 00:04:00.753 and why a legal person—, a fetal personhood law would be such a significant change 00:04:00.753 --> 00:04:02.407 to the existing law. 00:04:02.407 --> 00:04:05.618 And then I want to spend a little bit more time 00:04:05.618 --> 00:04:11.014 talking particularly about the legal status 00:04:11.014 --> 00:04:14.112 of abortion in NSW because this is one of the things 00:04:14.112 --> 00:04:19.587 that I am particularly concerned about in relation to Zoe's Law 00:04:19.587 --> 00:04:24.121 because we have a really uniquely precarious position 00:04:24.121 --> 00:04:26.057 with abortion law in NSW. 00:04:26.057 --> 00:04:29.524 And i think we all need to understand the fragility 00:04:29.524 --> 00:04:30.829 of lawful abortion in this state 00:04:30.829 --> 00:04:33.090 in order to realise just how risky it would be 00:04:33.090 --> 00:04:36.904 if this bill goes through. 00:04:36.904 --> 00:04:38.710 So just to give a little bit of a background 00:04:38.710 --> 00:04:43.107 about how the law has traditionally regarded fetuses. 00:04:43.107 --> 00:04:48.642 In short, the law in NSW has always adopted 00:04:48.642 --> 00:04:51.332 what is known as the 'born alive' rule. 00:04:51.332 --> 00:04:55.359 And what that says is that until 00:04:55.359 --> 00:05:00.301 a child is born and takes a breath 00:05:00.301 --> 00:05:05.116 the child is not to be regarded as a legal person. 00:05:05.116 --> 00:05:09.213 And so there are some situations around the edges 00:05:09.213 --> 00:05:12.068 where the law has had to look at 00:05:12.068 --> 00:05:14.216 should there be changes made to the born alive rule? 00:05:14.216 --> 00:05:16.633 Let's say for example, there have been cases where 00:05:16.633 --> 00:05:19.511 a pregnant woman has been involved in a car accident 00:05:19.511 --> 00:05:22.716 and has had, has sustained injuries 00:05:22.716 --> 00:05:26.233 which has included an injury to her fetus. 00:05:26.233 --> 00:05:28.884 And the courts have held that if that fetus 00:05:28.884 --> 00:05:32.513 goes on to be born alive, hence the born alive rule, 00:05:32.513 --> 00:05:35.373 goes on to be born alive, the fetus as a person, 00:05:35.373 --> 00:05:37.376 as a legal person after birth, 00:05:37.376 --> 00:05:39.612 will have the right to claim damages, 00:05:39.612 --> 00:05:46.045 to be compensated for the injuries sustained while in his or her mother's womb. 00:05:46.045 --> 00:05:48.270 But that legal right only crystallises, 00:05:48.270 --> 00:05:49.799 and this is a really important point, 00:05:49.799 --> 00:05:54.339 that legal right only crystallises once the child is born alive. 00:05:54.339 --> 00:05:57.167 And so although there is a recognition of 00:05:57.167 --> 00:05:59.270 injuries sustained while a fetus, 00:05:59.270 --> 00:06:03.773 the principle of the born alive rule is maintained. 00:06:03.773 --> 00:06:05.564 And there are numerous examples of that. 00:06:05.564 --> 00:06:08.760 There was one I was reading about just a couple of weeks ago 00:06:08.760 --> 00:06:10.738 in relation to the coroner's jurisdiction. 00:06:10.738 --> 00:06:12.948 Because under the coronial legislation 00:06:12.948 --> 00:06:16.489 certainly in NSW and I think in most states in Australia 00:06:16.489 --> 00:06:21.523 the coroner has jurisdiction only to investigate deaths. 00:06:21.523 --> 00:06:23.444 So if it's a stillbirth, 00:06:23.444 --> 00:06:26.223 under the Coroner's Act, the coroner doesn't have jurisdiction, 00:06:26.223 --> 00:06:30.480 because you haven't had a person who has been born alive. 00:06:30.480 --> 00:06:34.669 And there has been some debate about whether it would be appropriate 00:06:34.669 --> 00:06:37.363 for the coroner's jurisdiction to be expanded 00:06:37.363 --> 00:06:39.528 so that the coroner could investigate circumstances 00:06:39.528 --> 00:06:41.248 surrounding stillbirths as well as 00:06:41.248 --> 00:06:47.486 circumstances surrounding the deaths of children who have been born alive. 00:06:47.486 --> 00:06:49.835 But that hasn't happened, and even in the literature about 00:06:49.835 --> 00:06:54.617 a possible extension of the coronial jurisdiction to stillbirths 00:06:54.617 --> 00:06:56.683 which would be much less concerning than 00:06:56.683 --> 00:07:00.854 a full recognition of fetuses as a person 00:07:00.854 --> 00:07:03.167 there has been opposition to that on the basis that 00:07:03.167 --> 00:07:06.595 that would encroach upon the born alive rule 00:07:06.595 --> 00:07:10.617 which is considered to be a very important dividing line 00:07:10.617 --> 00:07:13.097 as to why—, when and in what circumstances 00:07:13.097 --> 00:07:18.211 the law should recognise someone as an individual person. 00:07:18.211 --> 00:07:19.341 So that's a starting point. 00:07:19.341 --> 00:07:21.332 We have in NSW the born alive rule, 00:07:21.332 --> 00:07:24.784 it is a very strong and very well established legal principle. 00:07:24.784 --> 00:07:28.703 And I am certainly not aware of any other case, 00:07:28.703 --> 00:07:33.036 and an example of a court decision or of legislation, 00:07:33.036 --> 00:07:36.279 which has departed from the born alive rule. 00:07:36.279 --> 00:07:37.994 [cough] 00:07:37.994 --> 00:07:39.177 So that's the background that we have 00:07:39.177 --> 00:07:40.246 when we look at Zoe's Law. 00:07:40.246 --> 00:07:44.531 Because Zoe's Law would be a radical departure from the born alive rule. 00:07:44.531 --> 00:07:46.578 And all those who support it say 00:07:46.578 --> 00:07:50.133 but it's only limited to the particular circumstances of 00:07:50.133 --> 00:07:55.971 grevous bodily harm offenses that it would relate to 00:07:55.971 --> 00:07:58.734 but none the less, in legal terms, 00:07:58.734 --> 00:08:01.073 it would be a very significant development 00:08:01.073 --> 00:08:03.714 because it would be the first time that NSW law 00:08:03.714 --> 00:08:08.076 has recognised a fetus as a legal person. 00:08:08.076 --> 00:08:12.283 And that is a very significant change to the law. 00:08:12.283 --> 00:08:14.183 Why does it matter? 00:08:14.183 --> 00:08:17.742 As I've said all those people who are supporting Zoe's Law 00:08:17.742 --> 00:08:20.816 say but it's limited to the circumstances of 00:08:20.816 --> 00:08:23.537 these particular grevious bodily harm offences, 00:08:23.537 --> 00:08:25.931 it won't affect other areas of the law 00:08:25.931 --> 00:08:28.333 such as abortion. 00:08:28.333 --> 00:08:31.272 I beleve that is simply an incorrect legal analysis. 00:08:31.272 --> 00:08:34.585 I just wanted to spend the second part of my time 00:08:34.585 --> 00:08:38.451 um, going over a little bit of the background 00:08:38.451 --> 00:08:41.707 what is the legal position of abortion in NSW. 00:08:41.707 --> 00:08:44.645 And why given that background 00:08:44.645 --> 00:08:48.731 having a provision that recognises a fetus as a person 00:08:48.731 --> 00:08:53.397 even if it's only in the context of these particular sections of the criminal code 00:08:53.397 --> 00:08:58.211 why that would a threat to lawful abortion in this state. 00:09:01.878 --> 00:09:03.096 Now, what do I have to do? 00:09:03.096 --> 00:09:04.880 I've got to press Escape? 00:09:13.802 --> 00:09:16.726 So, what is the current abortion law in NSW? 00:09:16.726 --> 00:09:22.250 Um, I can guarantee you, because I've done this a million times, 00:09:22.250 --> 00:09:25.393 if you take a straw poll against your friends and colleagues, 00:09:25.393 --> 00:09:28.842 and you say "Is abortion legal in NSW?" 00:09:28.842 --> 00:09:30.139 The overwhelming majority of people will say 00:09:30.139 --> 00:09:32.335 "of course it's lawful in NSW." 00:09:32.335 --> 00:09:37.255 People simply don't realise that abortion is still a crime in NSW. 00:09:37.255 --> 00:09:40.184 One of the major problems that we have doing abortion advocacy 00:09:40.184 --> 00:09:43.499 is to convey to people that there is a problem. 00:09:43.499 --> 00:09:46.442 Because the majority of people think that it's all been sorted 00:09:46.442 --> 00:09:48.415 that we have abortion on demand in NSW. 00:09:48.415 --> 00:09:54.818 Sadly, the truth is a long way from that. 00:09:54.818 --> 00:09:57.690 Abortion is still a criminal offence in NSW. 00:09:57.690 --> 00:10:01.761 It always has been for as long as the Crimes Act has been in place, 00:10:01.761 --> 00:10:03.543 which is now well over 100 years 00:10:03.543 --> 00:10:07.543 and the offence has not changed over that time. 00:10:08.780 --> 00:10:15.739 Ah, it's imported from the original British criminal code provisions. 00:10:15.739 --> 00:10:19.351 And it's an offence, I put up the wording of the offence on the slide there, 00:10:19.351 --> 00:10:24.915 it's an offence both for a woman who does something to herself 00:10:24.915 --> 00:10:26.750 to procure her own miscarriage 00:10:26.750 --> 00:10:28.313 which is the wording that they use 00:10:28.313 --> 00:10:34.005 and it's also a criminal offence for another person 00:10:34.005 --> 00:10:36.633 to administer something, to perform a procedure 00:10:36.633 --> 00:10:39.769 that brings about a woman's miscarriage. 00:10:39.769 --> 00:10:41.341 [cough] 00:10:41.341 --> 00:10:44.994 But the critical word, which you can see there in both those offences 00:10:44.994 --> 00:10:46.960 is "unlawfully". 00:10:46.960 --> 00:10:48.280 Because it says 00:10:48.280 --> 00:10:51.315 "whosoever unlawfully administers to herself" 00:10:51.315 --> 00:10:52.312 or if you're a doctor or someone else 00:10:52.312 --> 00:10:57.071 "whosoever unlawfully administers to a woman". 00:10:57.071 --> 00:11:02.924 And so the interpretation of a lawful abortion in NSW 00:11:02.924 --> 00:11:07.731 hinges on this one small word, "unlawfully". 00:11:07.731 --> 00:11:09.605 And it's quite an unusual provision 00:11:09.605 --> 00:11:12.540 in the context of the Crimes Act 00:11:12.540 --> 00:11:15.207 because the Crimes Act doesn't define what "unlawfully" is. 00:11:15.207 --> 00:11:18.466 In most of the other offences in the Crimes Act 00:11:18.466 --> 00:11:20.383 it says "well, these are the elements of the offences, 00:11:20.383 --> 00:11:24.822 and these are the things that might be a defence to a particular criminal offence." 00:11:24.822 --> 00:11:27.509 It doesn't say that in relation to the abortion offences. 00:11:27.509 --> 00:11:32.005 So that's a really significant problem to start with 00:11:32.005 --> 00:11:35.556 in terms of getting clarity as to what the legal position is. 00:11:35.556 --> 00:11:37.016 So what the law says is 00:11:37.016 --> 00:11:39.668 "if you do something unlawfully it's a criminal offence." 00:11:39.668 --> 00:11:41.403 Particularly unhelpful. 00:11:41.403 --> 00:11:45.043 And so in terms of deciding and determining 00:11:45.043 --> 00:11:47.902 what really is lawful and what is not lawful 00:11:47.902 --> 00:11:50.803 we have to look to how the courts have interpreted 00:11:50.803 --> 00:11:52.522 that one word "unlawfully". 00:11:53.721 --> 00:11:56.943 Um, there have not been many court decisions 00:11:56.943 --> 00:11:59.595 but the ones that there have been 00:11:59.595 --> 00:12:02.013 — now why is that not turning on? 00:12:02.013 --> 00:12:04.900 I've got to play that, don't I? 00:12:08.039 --> 00:12:08.682 What's wrong? 00:12:08.682 --> 00:12:10.475 No it's not working. 00:12:10.475 --> 00:12:11.971 Oh yes it is! 00:12:11.971 --> 00:12:15.443 So the definition of unlawfully and 00:12:15.443 --> 00:12:19.051 the way unlawfully has been interpreted by our courts 00:12:19.051 --> 00:12:22.200 goes back to two very old decisions 00:12:22.200 --> 00:12:24.300 one in 1969 in Victoria 00:12:24.300 --> 00:12:26.557 and one in 1971 in NSW. 00:12:26.557 --> 00:12:29.390 And what they've said in short, 00:12:29.390 --> 00:12:31.126 I've put up the precise wording there, 00:12:31.126 --> 00:12:33.320 what they have said in short is that 00:12:33.320 --> 00:12:41.769 it will be lawful if the abortion is considered to be 00:12:41.769 --> 00:12:43.346 is reasonably considered to be 00:12:43.346 --> 00:12:45.500 necessary to preserve the woman from 00:12:45.500 --> 00:12:48.993 a serious danger to her life or her physical or mental health 00:12:48.993 --> 00:12:52.408 and in the circumstances is not out of proportion to the danger. 00:12:52.408 --> 00:12:55.494 So in short what you need to show in order to 00:12:55.494 --> 00:12:57.486 establish that an abortion is lawful 00:12:57.486 --> 00:12:58.917 is that it's necessary to prevent 00:12:58.917 --> 00:13:02.762 a serious risk to the life or health of the woman. 00:13:02.762 --> 00:13:05.082 It's known as the Menhennitt rules, the test. 00:13:05.082 --> 00:13:11.290 And in NSW we had a case in 1971, R v Wald, 00:13:11.290 --> 00:13:14.363 where that test was adopted. 00:13:14.363 --> 00:13:16.216 Actually a very interesting background to that case. 00:13:16.216 --> 00:13:19.106 It was, it was, quite a shocking set of circumstances 00:13:19.106 --> 00:13:20.301 that gave rise to it. 00:13:20.301 --> 00:13:24.348 Dr Wald was a doctor who ran a termination clinic 00:13:24.348 --> 00:13:26.803 in Clovelly I think, somewhere in the eastern suburbs, 00:13:26.803 --> 00:13:30.358 and there was a police raid on that clinic, 00:13:30.358 --> 00:13:31.957 without notice one day, 00:13:31.957 --> 00:13:33.644 with women on the operating table 00:13:33.644 --> 00:13:35.945 in the middle of having terminations. 00:13:35.945 --> 00:13:43.194 And Dr Wald was charged with unlawfully performing an abortion. 00:13:43.194 --> 00:13:48.297 And the main statement that we have of the law in NSW 00:13:48.297 --> 00:13:49.530 comes from that case, 00:13:49.530 --> 00:13:52.070 and it's not even from an actual decision by the judge. 00:13:52.070 --> 00:13:54.158 It's from directions that the judge, 00:13:54.158 --> 00:13:57.263 in the criminal trial of Dr Wald, gave to the jury. 00:13:57.263 --> 00:14:00.127 But what the judge did was to adopt the test 00:14:00.127 --> 00:14:05.944 of serious risk to the life or health of the woman. 00:14:05.944 --> 00:14:09.776 Since then we've only had a very very small number of cases. 00:14:09.776 --> 00:14:10.906 And that I guess is a good thing, 00:14:10.906 --> 00:14:13.245 it shows there isn't a lot of appetite 00:14:13.245 --> 00:14:15.934 to bring criminal prosecutions to court. 00:14:15.934 --> 00:14:19.605 And the cases that we have had by and large 00:14:19.605 --> 00:14:23.325 have upheld the test in Wald, 00:14:23.325 --> 00:14:26.291 which says that an abortion is lawful 00:14:26.291 --> 00:14:29.380 if it is necessary to prevent a serious health to— 00:14:29.380 --> 00:14:31.832 er, serious risk to the life or health of the woman. 00:14:31.832 --> 00:14:34.332 And it's been expanded to acknowledge that there might be 00:14:34.332 --> 00:14:36.197 economic and social grounds on which 00:14:36.197 --> 00:14:39.765 the continuation of the pregnancy might pose 00:14:39.765 --> 00:14:45.190 a serious risk to the woman's health or life. 00:14:45.190 --> 00:14:49.240 And so everything seemed to have a sort of uneasy equilibrium 00:14:49.240 --> 00:14:52.576 until 2010 where in Queensland as you may have read 00:14:52.576 --> 00:14:55.388 there was a prosecution brought against a young woman 00:14:55.388 --> 00:14:58.842 who had a medical abortion at home 00:14:58.842 --> 00:15:02.770 using RU486, that she administered to herself. 00:15:02.770 --> 00:15:05.469 And she was criminally charged under the Queensland criminal code 00:15:05.469 --> 00:15:07.774 which was very similiar at that time to our code. 00:15:07.774 --> 00:15:09.993 It's since been amended to make it a little bit better, 00:15:09.993 --> 00:15:11.918 not much but a little bit. 00:15:11.918 --> 00:15:17.221 And so she was charged with unlawfully procuring her own termination. 00:15:17.221 --> 00:15:18.441 She was acquitted by the jury 00:15:18.441 --> 00:15:19.313 we don't have reasons 00:15:19.313 --> 00:15:21.002 so we don't know exactly what the thinking was 00:15:21.002 --> 00:15:22.538 of the jury. 00:15:22.538 --> 00:15:24.861 We have some hints 00:15:24.861 --> 00:15:26.942 from the directions that the judge gave to the jury. 00:15:26.942 --> 00:15:28.133 And I can talk more about that later 00:15:28.133 --> 00:15:31.558 I don't really have time to go into that now. 00:15:31.558 --> 00:15:32.476 So she was acquitted and 00:15:32.476 --> 00:15:33.846 that's a good thing. 00:15:33.846 --> 00:15:38.313 But it certainly was a very stark reminder 00:15:38.313 --> 00:15:41.594 of just how precarious a position we have 00:15:41.594 --> 00:15:43.375 in NSW and Queensland 00:15:43.375 --> 00:15:47.494 where we still have these outdated offences 00:15:47.494 --> 00:15:49.008 in our criminal code 00:15:49.008 --> 00:15:51.735 that can be brought into life at any time 00:15:51.735 --> 00:15:54.626 if the circumstances come together 00:15:54.626 --> 00:15:57.258 such that uh, either a woman 00:15:57.258 --> 00:15:59.163 or a medical practitioner, 00:15:59.163 --> 00:16:01.732 could be criminally charged. 00:16:01.732 --> 00:16:03.223 [cough] 00:16:03.223 --> 00:16:06.693 So just briefly, and to sum up, 00:16:06.693 --> 00:16:10.669 why is the existing abortion law so unsatisfactory? 00:16:10.669 --> 00:16:12.078 Well, you know, where do you begin? 00:16:12.078 --> 00:16:13.602 There are so many reasons. 00:16:13.602 --> 00:16:14.997 First of all, it remains a criminal offence, 00:16:14.997 --> 00:16:16.961 and as I've said that's obviously a problem. 00:16:16.961 --> 00:16:20.910 Because this, the lawfulness depends upon 00:16:20.910 --> 00:16:24.298 how the courts interpret this word "unlawfully" 00:16:24.298 --> 00:16:26.678 on the facts of a particular case. 00:16:26.678 --> 00:16:28.707 It's a very unstable foundation 00:16:28.707 --> 00:16:31.906 for lawful abortion in this state. 00:16:31.906 --> 00:16:35.120 It's subject to particular facts of the case 00:16:35.120 --> 00:16:37.346 it's subject to the personal inclinations 00:16:37.346 --> 00:16:40.644 and beliefs of particular judges 00:16:40.644 --> 00:16:42.228 and we have had a case that was overturned 00:16:42.228 --> 00:16:43.834 in appeal in NSW 00:16:43.834 --> 00:16:45.422 the Superclinics case 00:16:45.422 --> 00:16:48.305 where the particular personal beliefs of a judge 00:16:48.305 --> 00:16:51.549 clearly intervened in his decision 00:16:51.549 --> 00:16:55.525 in declaring a particular abortion had been unlawful. 00:16:55.525 --> 00:17:00.244 And as I've said, we know from the case in Queensland 00:17:00.244 --> 00:17:01.897 that while prosecutions are rare, 00:17:01.897 --> 00:17:05.839 they're certainly a very real possibility. 00:17:05.839 --> 00:17:07.109 In practice what it means of course 00:17:07.109 --> 00:17:08.919 is that abortion is in a grey zone. 00:17:08.919 --> 00:17:13.831 It is not fully legal like other mainstream medical procedures. 00:17:13.831 --> 00:17:16.431 In NSW terminations are performed 00:17:16.431 --> 00:17:18.039 overwhelming in the private sector, 00:17:18.039 --> 00:17:20.610 not in the public sector, 00:17:20.610 --> 00:17:24.234 and there are really concerning issues about cost and access 00:17:24.234 --> 00:17:27.841 as a result of that. 00:17:27.841 --> 00:17:31.425 Fetal anomaly is not a relevant consideration 00:17:31.425 --> 00:17:34.565 to the test of unlawful abortion 00:17:34.565 --> 00:17:38.439 except to the extent that a child, if born disabled, 00:17:38.439 --> 00:17:45.152 might have an impact upon the psychological health of the mother. 00:17:45.152 --> 00:17:46.983 And that's just ridiculous. 00:17:46.983 --> 00:17:52.879 You know, we know that the overwhelming majority of public opinion 00:17:52.879 --> 00:17:55.413 supports access to abortion at least in that— 00:17:55.413 --> 00:17:56.780 in those circumstances. 00:17:56.780 --> 00:17:58.763 Indeed the majority supports it 00:17:58.763 --> 00:18:01.704 in an even broader set of circumstances. 00:18:01.704 --> 00:18:04.443 But certainly to have a law that doesn't recognise 00:18:04.443 --> 00:18:07.727 serious fetal anomaly as grounds in itself 00:18:07.727 --> 00:18:12.000 for a lawful abortion is quite concerning. 00:18:12.000 --> 00:18:14.639 And so we're left with a disconnect between what the law says 00:18:14.639 --> 00:18:16.514 what most people think it says 00:18:16.514 --> 00:18:19.445 and what is actually happening in practice. 00:18:19.445 --> 00:18:23.072 Because we have clinics who— that are operating 00:18:23.072 --> 00:18:25.552 where terminations are performed 00:18:25.552 --> 00:18:30.867 but where it's done with a concern constantly 00:18:30.867 --> 00:18:33.943 to be able satisfy this very limited test 00:18:33.943 --> 00:18:36.212 of serious risk to the life or health of the woman 00:18:36.212 --> 00:18:41.208 that doesn't really accord with the motives 00:18:41.208 --> 00:18:42.881 and with the reality of what's happening 00:18:42.881 --> 00:18:46.262 with a lot of terminations. 00:18:46.262 --> 00:18:47.481 And so finally just to bring it back to 00:18:47.481 --> 00:18:49.588 the concern about Zoe's Law: 00:18:49.588 --> 00:18:53.887 because we have this fundamental instability 00:18:53.887 --> 00:18:56.493 and a lack of a secure foundation 00:18:56.493 --> 00:19:00.225 a secure legal foundation for abortion in NSW 00:19:00.225 --> 00:19:04.183 any law that recognises a fetus as a living person 00:19:04.183 --> 00:19:05.683 which is what Zoe's Law will do 00:19:05.683 --> 00:19:07.521 however limited it is 00:19:07.521 --> 00:19:12.984 to the particular section of the Crimes Act that the amendment relates to 00:19:12.984 --> 00:19:15.467 however limited it is 00:19:15.467 --> 00:19:18.344 it provides ammunition for someone 00:19:18.344 --> 00:19:21.169 who wishes to challenge the lawfulness of an abortion 00:19:21.169 --> 00:19:23.807 the next time a case comes to court. 00:19:23.807 --> 00:19:27.658 And that's an issue that I think should be of serious concern to all of us. 00:19:27.658 --> 00:19:28.528 Thanks very much. 00:19:28.528 --> 00:19:34.063 [applause]