Good evening and welcome everyone.
I'm Mehreen Faruqi and I'm a Greens MP in State Parliament.
I have the carriage of the Portfolio for
the Status of Women for the Greens
and I also have the privilege tonight of being your MC.
I'll start by acknowledging
the traditional owners of the land we're meeting on
the Gadigal people and pay my respect to the elders past and present.
This land always has been and always will be
Aboriginal land.
I'd also like to acknowledge a couple of my colleagues
from NSW Parliament:
Greg Piper, who's an Independent in the lower house
and Dr John Kay, who's a Greens in the upper house.
Thank you both for coming.
And thank you all of you for making time tonight
to come and participate in this community forum
which really is about helping us unpack some of the implications
of this fetal personhood law
which is also known as "Zoe's Law"
that we have in front of Parliament at the moment.
This law is being debated in NSW Parliament at the moment
so I think it's really timely that we talk about it
discuss it and get enough information about it
to see why it is actually inappropriate
and dangerous for women's rights.
The media has given quite a bit of coverage
the last couple of months
also NSW Bar Association and
the Australian Medical Association
Family Planning NSW and the Greens
have come out and clearly stated their position
in opposition to this Bill.
There's also a coalition, a group formed by a coalition,
of women's groups called Our Bodies Our Choice
who are running the campaign
also to provide information to the community
to lobby the MPs, to provide information to them
about the implications of the bill.
And tonight we're really fortunate
to have three excellent speakers with us
who will take us through the legal, health and medical implications
as well as the consequences for women's rights of this particular bill.
Each of our guests is going to speak for about 10 to 15 minutes
and then we'll open up for about 30 minutes to 40 minutes
to have a discussion
and also to ask questions of our speakers.
We will be recording tonight's session
and we'll make a Youtube and put it up on our website
so if you have any issues being recorded
it will mainly be the speakers
but we might record you when you're asking your question
if you have any issues with that just let us know
and we'll edit you out.
OK, so our first speaker for tonight is Julie Hamblin.
Julie is a lawyer with more than 20 years experience
advising the public and private health sectors
on health law, medical negligence, clinical risk,
bioethics and public health.
She has held a number of government appointments in the health sector
including the Australian Research Integrity Committee,
the Australian National Council on HIV/AIDS and Related Diseases,
and the board of the former Central Sydney Area Health Service.
In December 2012, Julie was appointed to
the NSW Clinical Ethics Advisory Panel.
Julie has a long standing interest in sexual and reproductive health,
and has undertaken consultancy work with
HIV and related sexual health issues
in more than 20 countries, in Asia, the Pacific, Africa and Eastern Europe.
So please warmly welcome Julie Hamblin.
[applause]
Thank you Mehreen, thank you everyone for coming along tonight
to talk about this really important issue
it's something that's very close to my heart
and I, um, think it's so important that
we all understand exactly what is at stake
with the bill that is before NSW Parliament at the moment.
What I wanted to do in my comments is
to talk first of all very briefly about
how the law currently regards fetuses
and why a legal person—, a fetal personhood law would be such a significant change
to the existing law.
And then I want to spend a little bit more time
talking particularly about the legal status
of abortion in NSW because this is one of the things
that I am particularly concerned about in relation to Zoe's Law
because we have a really uniquely precarious position
with abortion law in NSW.
And i think we all need to understand the fragility
of lawful abortion in this state
in order to realise just how risky it would be
if this bill goes through.
So just to give a little bit of a background
about how the law has traditionally regarded fetuses.
In short, the law in NSW has always adopted
what is known as the 'born alive' rule.
And what that says is that until
a child is born and takes a breath
the child is not to be regarded as a legal person.
And so there are some situations around the edges
where the law has had to look at
should there be changes made to the born alive rule?
Let's say for example, there have been cases where
a pregnant woman has been involved in a car accident
and has had, has sustained injuries
which has included an injury to her fetus.
And the courts have held that if that fetus
goes on to be born alive, hence the born alive rule,
goes on to be born alive, the fetus as a person,
as a legal person after birth,
will have the right to claim damages,
to be compensated for the injuries sustained while in his or her mother's womb.
But that legal right only crystallises,
and this is a really important point,
that legal right only crystallises once the child is born alive.
And so although there is a recognition of
injuries sustained while a fetus,
the principle of the born alive rule is maintained.
And there are numerous examples of that.
There was one I was reading about just a couple of weeks ago
in relation to the coroner's jurisdiction.
Because under the coronial legislation
certainly in NSW and I think in most states in Australia
the coroner has jurisdiction only to investigate deaths.
So if it's a stillbirth,
under the Coroner's Act, the coroner doesn't have jurisdiction,
because you haven't had a person who has been born alive.
And there has been some debate about whether it would be appropriate
for the coroner's jurisdiction to be expanded
so that the coroner could investigate circumstances
surrounding stillbirths as well as
circumstances surrounding the deaths of children who have been born alive.
But that hasn't happened, and even in the literature about
a possible extension of the coronial jurisdiction to stillbirths
which would be much less concerning than
a full recognition of fetuses as a person
there has been opposition to that on the basis that
that would encroach upon the born alive rule
which is considered to be a very important dividing line
as to why—, when and in what circumstances
the law should recognise someone as an individual person.
So that's a starting point.
We have in NSW the born alive rule,
it is a very strong and very well established legal principle.
And I am certainly not aware of any other case,
and an example of a court decision or of legislation,
which has departed from the born alive rule.
[cough]
So that's the background that we have
when we look at Zoe's Law.
Because Zoe's Law would be a radical departure from the born alive rule.
And all those who support it say
but it's only limited to the particular circumstances of
grevous bodily harm offenses that it would relate to
but none the less, in legal terms,
it would be a very significant development
because it would be the first time that NSW law
has recognised a fetus as a legal person.
And that is a very significant change to the law.
Why does it matter?
As I've said all those people who are supporting Zoe's Law
say but it's limited to the circumstances of
these particular grevious bodily harm offences,
it won't affect other areas of the law
such as abortion.
I beleve that is simply an incorrect legal analysis.
I just wanted to spend the second part of my time
um, going over a little bit of the background
what is the legal position of abortion in NSW.
And why given that background
having a provision that recognises a fetus as a person
even if it's only in the context of these particular sections of the criminal code
why that would a threat to lawful abortion in this state.
Now, what do I have to do?
I've got to press Escape?
So, what is the current abortion law in NSW?
Um, I can guarantee you, because I've done this a million times,
if you take a straw poll against your friends and colleagues,
and you say "Is abortion legal in NSW?"
The overwhelming majority of people will say
"of course it's lawful in NSW."
People simply don't realise that abortion is still a crime in NSW.
One of the major problems that we have doing abortion advocacy
is to convey to people that there is a problem.
Because the majority of people think that it's all been sorted
that we have abortion on demand in NSW.
Sadly, the truth is a long way from that.
Abortion is still a criminal offence in NSW.
It always has been for as long as the Crimes Act has been in place,
which is now well over 100 years
and the offence has not changed over that time.
Ah, it's imported from the original British criminal code provisions.
And it's an offence, I put up the wording of the offence on the slide there,
it's an offence both for a woman who does something to herself
to procure her own miscarriage
which is the wording that they use
and it's also a criminal offence for another person
to administer something, to perform a procedure
that brings about a woman's miscarriage.
[cough]
But the critical word, which you can see there in both those offences
is "unlawfully".
Because it says
"whosoever unlawfully administers to herself"
or if you're a doctor or someone else
"whosoever unlawfully administers to a woman".
And so the interpretation of a lawful abortion in NSW
hinges on this one small word, "unlawfully".
And it's quite an unusual provision
in the context of the Crimes Act
because the Crimes Act doesn't define what "unlawfully" is.
In most of the other offences in the Crimes Act
it says "well, these are the elements of the offences,
and these are the things that might be a defence to a particular criminal offence."
It doesn't say that in relation to the abortion offences.
So that's a really significant problem to start with
in terms of getting clarity as to what the legal position is.
So what the law says is
"if you do something unlawfully it's a criminal offence."
Particularly unhelpful.
And so in terms of deciding and determining
what really is lawful and what is not lawful
we have to look to how the courts have interpreted
that one word "unlawfully".
Um, there have not been many court decisions
but the ones that there have been
— now why is that not turning on?
I've got to play that, don't I?
What's wrong?
No it's not working.
Oh yes it is!
So the definition of unlawfully and
the way unlawfully has been interpreted by our courts
goes back to two very old decisions
one in 1969 in Victoria
and one in 1971 in NSW.
And what they've said in short,
I've put up the precise wording there,
what they have said in short is that
it will be lawful if the abortion is considered to be
is reasonably considered to be
necessary to preserve the woman from
a serious danger to her life or her physical or mental health
and in the circumstances is not out of proportion to the danger.
So in short what you need to show in order to
establish that an abortion is lawful
is that it's necessary to prevent
a serious risk to the life or health of the woman.
It's known as the Menhennitt rules, the test.
And in NSW we had a case in 1971, R v Wald,
where that test was adopted.
Actually a very interesting background to that case.
It was, it was, quite a shocking set of circumstances
that gave rise to it.
Dr Wald was a doctor who ran a termination clinic
in Clovelly I think, somewhere in the eastern suburbs,
and there was a police raid on that clinic,
without notice one day,
with women on the operating table
in the middle of having terminations.
And Dr Wald was charged with unlawfully performing an abortion.
And the main statement that we have of the law in NSW
comes from that case,
and it's not even from an actual decision by the judge.
It's from directions that the judge,
in the criminal trial of Dr Wald, gave to the jury.
But what the judge did was to adopt the test
of serious risk to the life or health of the woman.
Since then we've only had a very very small number of cases.
And that I guess is a good thing,
it shows there isn't a lot of appetite
to bring criminal prosecutions to court.
And the cases that we have had by and large
have upheld the test in Wald,
which says that an abortion is lawful
if it is necessary to prevent a serious health to—
er, serious risk to the life or health of the woman.
And it's been expanded to acknowledge that there might be
economic and social grounds on which
the continuation of the pregnancy might pose
a serious risk to the woman's health or life.
And so everything seemed to have a sort of uneasy equilibrium
until 2010 where in Queensland as you may have read
there was a prosecution brought against a young woman
who had a medical abortion at home
using RU486, that she administered to herself.
And she was criminally charged under the Queensland criminal code
which was very similiar at that time to our code.
It's since been amended to make it a little bit better,
not much but a little bit.
And so she was charged with unlawfully procuring her own termination.
She was acquitted by the jury
we don't have reasons
so we don't know exactly what the thinking was
of the jury.
We have some hints
from the directions that the judge gave to the jury.
And I can talk more about that later
I don't really have time to go into that now.
So she was acquitted and
that's a good thing.
But it certainly was a very stark reminder
of just how precarious a position we have
in NSW and Queensland
where we still have these outdated offences
in our criminal code
that can be brought into life at any time
if the circumstances come together
such that uh, either a woman
or a medical practitioner,
could be criminally charged.
[cough]
So just briefly, and to sum up,
why is the existing abortion law so unsatisfactory?
Well, you know, where do you begin?
There are so many reasons.
First of all, it remains a criminal offence,
and as I've said that's obviously a problem.
Because this, the lawfulness depends upon
how the courts interpret this word "unlawfully"
on the facts of a particular case.
It's a very unstable foundation
for lawful abortion in this state.
It's subject to particular facts of the case
it's subject to the personal inclinations
and beliefs of particular judges
and we have had a case that was overturned
in appeal in NSW
the Superclinics case
where the particular personal beliefs of a judge
clearly intervened in his decision
in declaring a particular abortion had been unlawful.
And as I've said, we know from the case in Queensland
that while prosecutions are rare,
they're certainly a very real possibility.
In practice what it means of course
is that abortion is in a grey zone.
It is not fully legal like other mainstream medical procedures.
In NSW terminations are performed
overwhelming in the private sector,
not in the public sector,
and there are really concerning issues about cost and access
as a result of that.
Fetal anomaly is not a relevant consideration
to the test of unlawful abortion
except to the extent that a child, if born disabled,
might have an impact upon the psychological health of the mother.
And that's just ridiculous.
You know, we know that the overwhelming majority of public opinion
supports access to abortion at least in that—
in those circumstances.
Indeed the majority supports it
in an even broader set of circumstances.
But certainly to have a law that doesn't recognise
serious fetal anomaly as grounds in itself
for a lawful abortion is quite concerning.
And so we're left with a disconnect between what the law says
what most people think it says
and what is actually happening in practice.
Because we have clinics who— that are operating
where terminations are performed
but where it's done with a concern constantly
to be able satisfy this very limited test
of serious risk to the life or health of the woman
that doesn't really accord with the motives
and with the reality of what's happening
with a lot of terminations.
And so finally just to bring it back to
the concern about Zoe's Law:
because we have this fundamental instability
and a lack of a secure foundation
a secure legal foundation for abortion in NSW
any law that recognises a fetus as a living person
which is what Zoe's Law will do
however limited it is
to the particular section of the Crimes Act that the amendment relates to
however limited it is
it provides ammunition for someone
who wishes to challenge the lawfulness of an abortion
the next time a case comes to court.
And that's an issue that I think should be of serious concern to all of us.
Thanks very much.
[applause]