0:00:04.555,0:00:07.624
Good evening and welcome everyone.

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I'm Mehreen Faruqi and I'm a Greens MP in State Parliament.

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I have the carriage of the Portfolio for

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the Status of Women for the Greens

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and I also have the privilege tonight of being your MC.

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I'll start by acknowledging

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the traditional owners of the land we're meeting on

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the Gadigal people and pay my respect to the elders past and present.

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This land always has been and always will be

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Aboriginal land.

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I'd also like to acknowledge a couple of my colleagues

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from NSW Parliament:

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Greg Piper, who's an Independent in the lower house

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and Dr John Kay, who's a Greens in the upper house.

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Thank you both for coming.

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And thank you all of you for making time tonight

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to come and participate in this community forum

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which really is about helping us unpack some of the implications

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of this fetal personhood law

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which is also known as "Zoe's Law"

0:00:58.395,0:01:01.893
that we have in front of Parliament at the moment.

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This law is being debated in NSW Parliament at the moment

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so I think it's really timely that we talk about it

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discuss it and get enough information about it

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to see why it is actually inappropriate

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and dangerous for women's rights.

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The media has given quite a bit of coverage

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the last couple of months

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also NSW Bar Association and

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the Australian Medical Association

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Family Planning NSW and the Greens

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have come out and clearly stated their position

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in opposition to this Bill.

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There's also a coalition, a group formed by a coalition,

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of women's groups called Our Bodies Our Choice

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who are running the campaign

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also to provide information to the community

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to lobby the MPs, to provide information to them

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about the implications of the bill.

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And tonight we're really fortunate

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to have three excellent speakers with us

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who will take us through the legal, health and medical implications

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as well as the consequences for women's rights of this particular bill.

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Each of our guests is going to speak for about 10 to 15 minutes

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and then we'll open up for about 30 minutes to 40 minutes

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to have a discussion

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and also to ask questions of our speakers.

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We will be recording tonight's session

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and we'll make a Youtube and put it up on our website

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so if you have any issues being recorded

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it will mainly be the speakers

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but we might record you when you're asking your question

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if you have any issues with that just let us know

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and we'll edit you out.

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OK, so our first speaker for tonight is Julie Hamblin.

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Julie is a lawyer with more than 20 years experience

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advising the public and private health sectors

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on health law, medical negligence, clinical risk,

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bioethics and public health.

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She has held a number of government appointments in the health sector

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including the Australian Research Integrity Committee,

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the Australian National Council on HIV/AIDS and Related Diseases,

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and the board of the former Central Sydney Area Health Service.

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In December 2012, Julie was appointed to

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the NSW Clinical Ethics Advisory Panel.

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Julie has a long standing interest in sexual and reproductive health,

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and has undertaken consultancy work with

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HIV and related sexual health issues

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in more than 20 countries, in Asia, the Pacific, Africa and Eastern Europe.

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So please warmly welcome Julie Hamblin.

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[applause]

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Thank you Mehreen, thank you everyone for coming along tonight

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to talk about this really important issue

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it's something that's very close to my heart

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and I, um, think it's so important that

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we all understand exactly what is at stake

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with the bill that is before NSW Parliament at the moment.

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What I wanted to do in my comments is

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to talk first of all very briefly about

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how the law currently regards fetuses

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and why a legal person—, a fetal personhood law would be such a significant change

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to the existing law.

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And then I want to spend a little bit more time

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talking particularly about the legal status

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of abortion in NSW because this is one of the things

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that I am particularly concerned about in relation to Zoe's Law

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because we have a really uniquely precarious position

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with abortion law in NSW.

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And i think we all need to understand the fragility

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of lawful abortion in this state

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in order to realise just how risky it would be

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if this bill goes through.

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So just to give a little bit of a background

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about how the law has traditionally regarded fetuses.

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In short, the law in NSW has always adopted

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what is known as the 'born alive' rule.

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And what that says is that until

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a child is born and takes a breath

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the child is not to be regarded as a legal person.

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And so there are some situations around the edges

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where the law has had to look at

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should there be changes made to the born alive rule?

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Let's say for example, there have been cases where

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a pregnant woman has been involved in a car accident

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and has had, has sustained injuries

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which has included an injury to her fetus.

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And the courts have held that if that fetus

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goes on to be born alive, hence the born alive rule,

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goes on to be born alive, the fetus as a person,

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as a legal person after birth,

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will have the right to claim damages,

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to be compensated for the injuries sustained while in his or her mother's womb.

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But that legal right only crystallises,

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and this is a really important point,

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that legal right only crystallises once the child is born alive.

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And so although there is a recognition of

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injuries sustained while a fetus,

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the principle of the born alive rule is maintained.

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And there are numerous examples of that.

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There was one I was reading about just a couple of weeks ago

0:06:08.760,0:06:10.738
in relation to the coroner's jurisdiction.

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Because under the coronial legislation

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certainly in NSW and I think in most states in Australia

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the coroner has jurisdiction only to investigate deaths.

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So if it's a stillbirth,

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under the Coroner's Act, the coroner doesn't have jurisdiction,

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because you haven't had a person who has been born alive.

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And there has been some debate about whether it would be appropriate

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for the coroner's jurisdiction to be expanded

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so that the coroner could investigate circumstances

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surrounding stillbirths as well as

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circumstances surrounding the deaths of children who have been born alive.

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But that hasn't happened, and even in the literature about

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a possible extension of the coronial jurisdiction to stillbirths

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which would be much less concerning than

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a full recognition of fetuses as a person

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there has been opposition to that on the basis that

0:07:03.167,0:07:06.595
that would encroach upon the born alive rule

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which is considered to be a very important dividing line

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as to why—, when and in what circumstances

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the law should recognise someone as an individual person.

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So that's a starting point.

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We have in NSW the born alive rule,

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it is a very strong and very well established legal principle.

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And I am certainly not aware of any other case,

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and an example of a court decision or of legislation,

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which has departed from the born alive rule.

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[cough]

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So that's the background that we have

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when we look at Zoe's Law.

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Because Zoe's Law would be a radical departure from the born alive rule.

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And all those who support it say

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but it's only limited to the particular circumstances of

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grevous bodily harm offenses that it would relate to

0:07:55.971,0:07:58.734
but none the less, in legal terms,

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it would be a very significant development

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because it would be the first time that NSW law

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has recognised a fetus as a legal person.

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And that is a very significant change to the law.

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Why does it matter?

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As I've said all those people who are supporting Zoe's Law

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say but it's limited to the circumstances of

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these particular grevious bodily harm offences,

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it won't affect other areas of the law

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such as abortion.

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I beleve that is simply an incorrect legal analysis.

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I just wanted to spend the second part of my time

0:08:34.585,0:08:38.451
um, going over a little bit of the background

0:08:38.451,0:08:41.707
what is the legal position of abortion in NSW.

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And why given that background

0:08:44.645,0:08:48.731
having a provision that recognises a fetus as a person

0:08:48.731,0:08:53.397
even if it's only in the context of these particular sections of the criminal code

0:08:53.397,0:08:58.211
why that would a threat to lawful abortion in this state.

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Now, what do I have to do?

0:09:03.096,0:09:04.880
I've got to press Escape?

0:09:13.802,0:09:16.726
So, what is the current abortion law in NSW?

0:09:16.726,0:09:22.250
Um, I can guarantee you, because I've done this a million times,

0:09:22.250,0:09:25.393
if you take a straw poll against your friends and colleagues,

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and you say "Is abortion legal in NSW?"

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The overwhelming majority of people will say

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"of course it's lawful in NSW."

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People simply don't realise that abortion is still a crime in NSW.

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One of the major problems that we have doing abortion advocacy

0:09:40.184,0:09:43.499
is to convey to people that there is a problem.

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Because the majority of people think that it's all been sorted

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that we have abortion on demand in NSW.

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Sadly, the truth is a long way from that.

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Abortion is still a criminal offence in NSW.

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It always has been for as long as the Crimes Act has been in place,

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which is now well over 100 years

0:10:03.543,0:10:07.543
and the offence has not changed over that time.

0:10:08.780,0:10:15.739
Ah, it's imported from the original British criminal code provisions.

0:10:15.739,0:10:19.351
And it's an offence, I put up the wording of the offence on the slide there,

0:10:19.351,0:10:24.915
it's an offence both for a woman who does something to herself

0:10:24.915,0:10:26.750
to procure her own miscarriage

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which is the wording that they use

0:10:28.313,0:10:34.005
and it's also a criminal offence for another person

0:10:34.005,0:10:36.633
to administer something, to perform a procedure

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that brings about a woman's miscarriage.

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[cough]

0:10:41.341,0:10:44.994
But the critical word, which you can see there in both those offences

0:10:44.994,0:10:46.960
is "unlawfully".

0:10:46.960,0:10:48.280
Because it says

0:10:48.280,0:10:51.315
"whosoever unlawfully administers to herself"

0:10:51.315,0:10:52.312
or if you're a doctor or someone else

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"whosoever unlawfully administers to a woman".

0:10:57.071,0:11:02.924
And so the interpretation of a lawful abortion in NSW

0:11:02.924,0:11:07.731
hinges on this one small word, "unlawfully".

0:11:07.731,0:11:09.605
And it's quite an unusual provision

0:11:09.605,0:11:12.540
in the context of the Crimes Act

0:11:12.540,0:11:15.207
because the Crimes Act doesn't define what "unlawfully" is.

0:11:15.207,0:11:18.466
In most of the other offences in the Crimes Act

0:11:18.466,0:11:20.383
it says "well, these are the elements of the offences,

0:11:20.383,0:11:24.822
and these are the things that might be a defence to a particular criminal offence."

0:11:24.822,0:11:27.509
It doesn't say that in relation to the abortion offences.

0:11:27.509,0:11:32.005
So that's a really significant problem to start with

0:11:32.005,0:11:35.556
in terms of getting clarity as to what the legal position is.

0:11:35.556,0:11:37.016
So what the law says is

0:11:37.016,0:11:39.668
"if you do something unlawfully it's a criminal offence."

0:11:39.668,0:11:41.403
Particularly unhelpful.

0:11:41.403,0:11:45.043
And so in terms of deciding and determining

0:11:45.043,0:11:47.902
what really is lawful and what is not lawful

0:11:47.902,0:11:50.803
we have to look to how the courts have interpreted

0:11:50.803,0:11:52.522
that one word "unlawfully".

0:11:53.721,0:11:56.943
Um, there have not been many court decisions

0:11:56.943,0:11:59.595
but the ones that there have been

0:11:59.595,0:12:02.013
— now why is that not turning on?

0:12:02.013,0:12:04.900
I've got to play that, don't I?

0:12:08.039,0:12:08.682
What's wrong?

0:12:08.682,0:12:10.475
No it's not working.

0:12:10.475,0:12:11.971
Oh yes it is!

0:12:11.971,0:12:15.443
So the definition of unlawfully and

0:12:15.443,0:12:19.051
the way unlawfully has been interpreted by our courts

0:12:19.051,0:12:22.200
goes back to two very old decisions

0:12:22.200,0:12:24.300
one in 1969 in Victoria

0:12:24.300,0:12:26.557
and one in 1971 in NSW.

0:12:26.557,0:12:29.390
And what they've said in short,

0:12:29.390,0:12:31.126
I've put up the precise wording there,

0:12:31.126,0:12:33.320
what they have said in short is that

0:12:33.320,0:12:41.769
it will be lawful if the abortion is considered to be

0:12:41.769,0:12:43.346
is reasonably considered to be

0:12:43.346,0:12:45.500
necessary to preserve the woman from

0:12:45.500,0:12:48.993
a serious danger to her life or her physical or mental health

0:12:48.993,0:12:52.408
and in the circumstances is not out of proportion to the danger.

0:12:52.408,0:12:55.494
So in short what you need to show in order to

0:12:55.494,0:12:57.486
establish that an abortion is lawful

0:12:57.486,0:12:58.917
is that it's necessary to prevent

0:12:58.917,0:13:02.762
a serious risk to the life or health of the woman.

0:13:02.762,0:13:05.082
It's known as the Menhennitt rules, the test.

0:13:05.082,0:13:11.290
And in NSW we had a case in 1971, R v Wald,

0:13:11.290,0:13:14.363
where that test was adopted.

0:13:14.363,0:13:16.216
Actually a very interesting background to that case.

0:13:16.216,0:13:19.106
It was, it was, quite a shocking set of circumstances

0:13:19.106,0:13:20.301
that gave rise to it.

0:13:20.301,0:13:24.348
Dr Wald was a doctor who ran a termination clinic

0:13:24.348,0:13:26.803
in Clovelly I think, somewhere in the eastern suburbs,

0:13:26.803,0:13:30.358
and there was a police raid on that clinic,

0:13:30.358,0:13:31.957
without notice one day,

0:13:31.957,0:13:33.644
with women on the operating table

0:13:33.644,0:13:35.945
in the middle of having terminations.

0:13:35.945,0:13:43.194
And Dr Wald was charged with unlawfully performing an abortion.

0:13:43.194,0:13:48.297
And the main statement that we have of the law in NSW

0:13:48.297,0:13:49.530
comes from that case,

0:13:49.530,0:13:52.070
and it's not even from an actual decision by the judge.

0:13:52.070,0:13:54.158
It's from directions that the judge,

0:13:54.158,0:13:57.263
in the criminal trial of Dr Wald, gave to the jury.

0:13:57.263,0:14:00.127
But what the judge did was to adopt the test

0:14:00.127,0:14:05.944
of serious risk to the life or health of the woman.

0:14:05.944,0:14:09.776
Since then we've only had a very very small number of cases.

0:14:09.776,0:14:10.906
And that I guess is a good thing,

0:14:10.906,0:14:13.245
it shows there isn't a lot of appetite

0:14:13.245,0:14:15.934
to bring criminal prosecutions to court.

0:14:15.934,0:14:19.605
And the cases that we have had by and large

0:14:19.605,0:14:23.325
have upheld the test in Wald,

0:14:23.325,0:14:26.291
which says that an abortion is lawful

0:14:26.291,0:14:29.380
if it is necessary to prevent a serious health to—

0:14:29.380,0:14:31.832
er, serious risk to the life or health of the woman.

0:14:31.832,0:14:34.332
And it's been expanded to acknowledge that there might be

0:14:34.332,0:14:36.197
economic and social grounds on which

0:14:36.197,0:14:39.765
the continuation of the pregnancy might pose

0:14:39.765,0:14:45.190
a serious risk to the woman's health or life.

0:14:45.190,0:14:49.240
And so everything seemed to have a sort of uneasy equilibrium

0:14:49.240,0:14:52.576
until 2010 where in Queensland as you may have read

0:14:52.576,0:14:55.388
there was a prosecution brought against a young woman

0:14:55.388,0:14:58.842
who had a medical abortion at home

0:14:58.842,0:15:02.770
using RU486, that she administered to herself.

0:15:02.770,0:15:05.469
And she was criminally charged under the Queensland criminal code

0:15:05.469,0:15:07.774
which was very similiar at that time to our code.

0:15:07.774,0:15:09.993
It's since been amended to make it a little bit better,

0:15:09.993,0:15:11.918
not much but a little bit.

0:15:11.918,0:15:17.221
And so she was charged with unlawfully procuring her own termination.

0:15:17.221,0:15:18.441
She was acquitted by the jury

0:15:18.441,0:15:19.313
we don't have reasons

0:15:19.313,0:15:21.002
so we don't know exactly what the thinking was

0:15:21.002,0:15:22.538
of the jury.

0:15:22.538,0:15:24.861
We have some hints

0:15:24.861,0:15:26.942
from the directions that the judge gave to the jury.

0:15:26.942,0:15:28.133
And I can talk more about that later

0:15:28.133,0:15:31.558
I don't really have time to go into that now.

0:15:31.558,0:15:32.476
So she was acquitted and

0:15:32.476,0:15:33.846
that's a good thing.

0:15:33.846,0:15:38.313
But it certainly was a very stark reminder

0:15:38.313,0:15:41.594
of just how precarious a position we have

0:15:41.594,0:15:43.375
in NSW and Queensland

0:15:43.375,0:15:47.494
where we still have these outdated offences

0:15:47.494,0:15:49.008
in our criminal code

0:15:49.008,0:15:51.735
that can be brought into life at any time

0:15:51.735,0:15:54.626
if the circumstances come together

0:15:54.626,0:15:57.258
such that uh, either a woman

0:15:57.258,0:15:59.163
or a medical practitioner,

0:15:59.163,0:16:01.732
could be criminally charged.

0:16:01.732,0:16:03.223
[cough]

0:16:03.223,0:16:06.693
So just briefly, and to sum up,

0:16:06.693,0:16:10.669
why is the existing abortion law so unsatisfactory?

0:16:10.669,0:16:12.078
Well, you know, where do you begin?

0:16:12.078,0:16:13.602
There are so many reasons.

0:16:13.602,0:16:14.997
First of all, it remains a criminal offence,

0:16:14.997,0:16:16.961
and as I've said that's obviously a problem.

0:16:16.961,0:16:20.910
Because this, the lawfulness depends upon

0:16:20.910,0:16:24.298
how the courts interpret this word "unlawfully"

0:16:24.298,0:16:26.678
on the facts of a particular case.

0:16:26.678,0:16:28.707
It's a very unstable foundation

0:16:28.707,0:16:31.906
for lawful abortion in this state.

0:16:31.906,0:16:35.120
It's subject to particular facts of the case

0:16:35.120,0:16:37.346
it's subject to the personal inclinations

0:16:37.346,0:16:40.644
and beliefs of particular judges

0:16:40.644,0:16:42.228
and we have had a case that was overturned

0:16:42.228,0:16:43.834
in appeal in NSW

0:16:43.834,0:16:45.422
the Superclinics case

0:16:45.422,0:16:48.305
where the particular personal beliefs of a judge

0:16:48.305,0:16:51.549
clearly intervened in his decision

0:16:51.549,0:16:55.525
in declaring a particular abortion had been unlawful.

0:16:55.525,0:17:00.244
And as I've said, we know from the case in Queensland

0:17:00.244,0:17:01.897
that while prosecutions are rare,

0:17:01.897,0:17:05.839
they're certainly a very real possibility.

0:17:05.839,0:17:07.109
In practice what it means of course

0:17:07.109,0:17:08.919
is that abortion is in a grey zone.

0:17:08.919,0:17:13.831
It is not fully legal like other mainstream medical procedures.

0:17:13.831,0:17:16.431
In NSW terminations are performed

0:17:16.431,0:17:18.039
overwhelming in the private sector,

0:17:18.039,0:17:20.610
not in the public sector,

0:17:20.610,0:17:24.234
and there are really concerning issues about cost and access

0:17:24.234,0:17:27.841
as a result of that.

0:17:27.841,0:17:31.425
Fetal anomaly is not a relevant consideration

0:17:31.425,0:17:34.565
to the test of unlawful abortion

0:17:34.565,0:17:38.439
except to the extent that a child, if born disabled,

0:17:38.439,0:17:45.152
might have an impact upon the psychological health of the mother.

0:17:45.152,0:17:46.983
And that's just ridiculous.

0:17:46.983,0:17:52.879
You know, we know that the overwhelming majority of public opinion

0:17:52.879,0:17:55.413
supports access to abortion at least in that—

0:17:55.413,0:17:56.780
in those circumstances.

0:17:56.780,0:17:58.763
Indeed the majority supports it

0:17:58.763,0:18:01.704
in an even broader set of circumstances.

0:18:01.704,0:18:04.443
But certainly to have a law that doesn't recognise

0:18:04.443,0:18:07.727
serious fetal anomaly as grounds in itself

0:18:07.727,0:18:12.000
for a lawful abortion is quite concerning.

0:18:12.000,0:18:14.639
And so we're left with a disconnect between what the law says

0:18:14.639,0:18:16.514
what most people think it says

0:18:16.514,0:18:19.445
and what is actually happening in practice.

0:18:19.445,0:18:23.072
Because we have clinics who— that are operating

0:18:23.072,0:18:25.552
where terminations are performed

0:18:25.552,0:18:30.867
but where it's done with a concern constantly

0:18:30.867,0:18:33.943
to be able satisfy this very limited test

0:18:33.943,0:18:36.212
of serious risk to the life or health of the woman

0:18:36.212,0:18:41.208
that doesn't really accord with the motives

0:18:41.208,0:18:42.881
and with the reality of what's happening

0:18:42.881,0:18:46.262
with a lot of terminations.

0:18:46.262,0:18:47.481
And so finally just to bring it back to

0:18:47.481,0:18:49.588
the concern about Zoe's Law:

0:18:49.588,0:18:53.887
because we have this fundamental instability

0:18:53.887,0:18:56.493
and a lack of a secure foundation

0:18:56.493,0:19:00.225
a secure legal foundation for abortion in NSW

0:19:00.225,0:19:04.183
any law that recognises a fetus as a living person

0:19:04.183,0:19:05.683
which is what Zoe's Law will do

0:19:05.683,0:19:07.521
however limited it is

0:19:07.521,0:19:12.984
to the particular section of the Crimes Act that the amendment relates to

0:19:12.984,0:19:15.467
however limited it is

0:19:15.467,0:19:18.344
it provides ammunition for someone

0:19:18.344,0:19:21.169
who wishes to challenge the lawfulness of an abortion

0:19:21.169,0:19:23.807
the next time a case comes to court.

0:19:23.807,0:19:27.658
And that's an issue that I think should be of serious concern to all of us.

0:19:27.658,0:19:28.528
Thanks very much.

0:19:28.528,0:19:34.063
[applause]