Alister Henskens portrait
Alister Henskens portrait

Reproductive Health Care Reform Bill 2019

Parliament of NSW

Mr ALISTER HENSKENS (Ku-ring-gai) (22:45:10): I thank the many constituents who have communicated their views for and against this bill to my office. I have read all the emails and had relayed to me the opinions for and against that were given over the phone. I have taken those representations into account but I am obviously only able to vote one way or the other on this bill. I also thank my colleagues who have shared their different opinions on the bill with me for the respectful way in which we have been able to discuss it. Abortion is an issue about which people have strong opinions. Discussing and hearing different points of view respectfully is important in arriving at the best decisions and I believe makes for better laws.

When studying the constitutional law of the United States of America during my Master of Laws degree I was surprised that a contentious social issue such as abortion law could be decided under a so-called Bill of Rights by nine unelected judges of the highest court of the country, the United States Supreme Court. In Roe v Wade that court found a right to an abortion through what I consider a tortuous legal interpretation of the United States Bill of Rights, which said nothing expressly about abortion. The law around this subject is an issue of contentious social policy for which elected members of Parliament should be responsible to the people of their community. It is not law that should be made by unelected judges in a constitutional context where parliament cannot amend it. It is a good example—along with the contentious American right of the freedom to bear arms—of how bills of rights take power away from parliaments and citizens and give too much power to judges who are not accountable to anyone for their decisions.

When I was a criminal law student at the University of Sydney law school, unlike law schools in America we spent all of about three seconds on the law of abortion because we were told that the decision in R v Wald [1971] 3 NSWDC 25 legalised abortion in New South Wales. We never read the case nor considered why or how it made abortion legal in New South Wales. We were taught that it was a reality that abortions could be legally obtained in this State. In recently reading Judge Levine's decision in R v Wald for the purposes of understanding the current state of abortion law without this bill, I noted that he identified that the Crimes Act 1900 used the terminology of an "unlawful" miscarriage. He reasoned this must mean that it has been possible since 1900 to have a lawful intentional miscarriage or abortion.

As a piece of judge-made law, R v Wald identified the circumstances in which a lawful abortion could be performed in New South Wales and can be performed today. The three requirements were: if there was the consent of the patient; if the abortion was skilfully performed by a qualified medical practitioner; and if the medical practitioner had an honest belief on reasonable grounds that the operation was necessary to preserve the patient from serious danger to life or physical or mental health. Because Judge Levine's decision in 1971 was judge‑made law, this Parliament has had an opportunity in the intervening 48 years to pass legislation overturning it or to otherwise seek to regulate lawful abortions in New South Wales. That has not happened prior to this bill coming to this Parliament. However, in those 48 years Judge Levine's decision—interpreting the words of the Crimes Act that allow legal abortions—has been confirmed by higher courts in our court system.

For example, in 1982 the Chief Judge in Equity of the New South Wales Supreme Court, Justice Helsham, followed and upheld Judge Levine's decision in the case of K v Minister for Youth and Community Services [1982] 1 NSWLR 311. That case concerned a classic example of what some doctors call a social abortion, one where there was no risk to the physical health of the pregnant teenage woman but a situation where the pregnant teenager did not believe that she was ready to look after the child. The court upheld her legal right to have the abortion. Those decisions were found to be correct and were upheld by the highest State court, the New South Wales Court of Appeal, in CES v Superclinics Australia Pty Ltd (1995) 38 NSWLR 47. In that case Justice Kirby made it clear that when a doctor considers the danger to a woman's health, regard may be had to the woman's economic, social or medical circumstances in order to make an abortion legal, and that those dangers did not need to arise only during the course of the pregnancy.

I have to decide whether I support the bill as the parliamentary representative of my electorate. I give the legal history because it is important to understand the legal context of the bill. The legal analysis explains that New South Wales has had legal abortions since 1900 and effectively abortion on demand since 1971 by reason of Judge Levine's interpretation of the Crimes Act. The available historical abortion statistics reveal the widespread nature of the incidence of legal abortions in our community. From 1984 when the statistics began until 2014, which is the last year of the statistics, the number of New South Wales abortions reported to Medicare have fluctuated greatly. There is no linear progression over time. In the 20 years from 1984 the number has changed from year to year within the range of 20,000 to 32,000 abortions per year. Based on other statistics, one estimate given by the Hon. Trevor Khan is that about 28,000 abortions took place in New South Wales in 2017.

This analysis accords with my life experience. Teenagers who attended my public co-educational high school in Newcastle were well aware of the legal right to an abortion. Family Planning NSW was a body that young women knew about and sought advice from on all issues to do with contraception and abortion. I was aware that there were teenage pregnancies that resulted in some births, and many years later I learnt that some girls in my year at high school had terminated pregnancies. Based on the evidence, my life experience and my legal knowledge, I draw the conclusion that whether this bill is passed or rejected it is probable that neither one more nor one less legal abortion will take place in New South Wales than currently takes place.

In assessing proposed legislation, I try to approach all issues with reason rather than emotion. As a general philosophical position, I believe in free markets, free enterprise and the freedom of association. I have been a strong defender of freedom of speech and freedom of religion. I believe that properly informed individuals are capable of reasoned choice in the world. For example, during the recent Federal election campaign Prime Minister Scott Morrison explained that the reason behind the tax-cut policy was his strong Liberal belief that people can make better decisions on their own behalf about how money should be spent than government can. Likewise, I think that women should be able to make their own choices about how they live their lives, informed by whatever religious or ethical framework they operate in and unburdened as much as possible by government.

When legislation came before Parliament last year to put in place abortion exclusion zones, I gave a detailed speech arguing against it because I thought it unnecessarily interfered with freedom of speech and freedom of religion. However, for the same reason I believe in basic freedoms like freedom of religion and freedom of speech, I believe that women should have the freedom to make lawful choices in this area. I support the intent of the bill which is to take the issue outside the Crimes Act. I do not think that the criminal law has a place in what is one of the most difficult decisions that a woman, with or without her partner, may make in life.

The moderator of the Uniting Church in Australia—one of the major Christian faiths—supports the bill. I was raised a Presbyterian, one of the many faiths that created the Uniting Church, so it is perhaps not entirely surprising that I take a similar view to the Uniting Church moderator, even though I acknowledge that senior leaders of other Christian faiths and other religions and constituents have written to me with contrary religious and moral views on the bill. I have always understood that sound medical opinion is that an abortion should never be a woman's primary contraceptive strategy, having regard to the risks to a woman's physical and mental health when having an abortion. In this debate it must be acknowledged that there are sometimes very cogent medical justifications for an abortion. Sometimes a fetus cannot survive beyond birth for various reasons. The mother is carrying a growing fetus that will be born and die shortly after birth, creating unimaginable grief for the pregnant woman and her partner, a grief much greater for some than the anguish of a decision to terminate.

Sometimes a pregnancy can so endanger the life of a pregnant woman that its continuation may kill both the mother and her fetus unless there is a termination. Sometimes people who greatly want a child are confronted with the reality that an abortion is an unwanted but best medical outcome in the circumstances, and sometimes young, or even not so young, women unintentionally fall pregnant. In my view none of those are circumstances warranting the intervention of the criminal law, which is the situation that the bill is remedying. [Extension of time]

In my contribution on the abortion exclusion zones last year I noted that there were equity issues with regard to accessing abortions in the public health system. The bill does not address those issues. That is a missed opportunity. Best practice in the termination of pregnancies occurs in our public system and having them available is fair and will give women the best outcomes. Women as young as 14 years of age have the legal capacity to give consent to a medical procedure under section 49 (2) of the Minors (Property and Contracts) Act 1970. Those young, and sometimes vulnerable, women can now legally decide to have an abortion and they may not have any family or other support because of their particular circumstances.

They are young women who may not feel comfortable informing their parents that they have fallen pregnant but want a termination. They may not have a family situation that is conducive to support if they wanted to tell someone. Those young women require proper psychological support for what can be a very traumatic decision, but this law does not make it available. It does not provide public funding for it and nor does the current law. At the moment the practice in the public system is to offer counselling to women who have a physical medical reason for a termination.

I agree with recommendation 2 of the statement by the Royal College of Obstetricians and Gynaecologists on abortion, updated in March 2019, that all people who contemplate having an abortion should have non-mandatory counselling made available. Preferably three relevant principles relating to non‑mandatory counselling should be included in the bill or developed after if it is passed in Parliament. First, that the Government should make publicly funded professional counselling available to any person who wishes to have a termination, and their partner. Secondly, a person wishing to have a termination should be told by the medical practitioner that that person can have access to publicly funded professional counselling if the person chooses. Thirdly, in the case of a person under the age of 18, publicly funded professional counselling should be recommended by the medical practitioner before and after the termination.

I am concerned that the bill does not adequately deal with the important matter of psychological support for women having an abortion and their partners. As access to public hospitals and public funding for counselling may raise issues under sections 39 to 46 of the New South Wales Constitution and may require the Minister for Health and Medical Research or other Minister to move such amendments, I leave those matters for their consideration. I also believe that there should be an obligation of good medical practice under clauses 5 and 6 of the bill. Currently there is no obligation for the medical practitioner to meet a standard when performing the procedures allowed by clauses 5 and 6. The definition of termination in the dictionary of the bill states that it can be performed "in any way". I would prefer that an obligation be inserted that states:

Terminations performed under sections 5 and 6 of the Act be performed in accordance with the professional standards and guidelines that apply to the medical practitioners in relation to the performance of the termination.

It is anomalous that consideration of those standards is required by clause 6 (2) (c) but there is no obligation to then go on and follow those standards in the provision of the professional services. Understandably there are concerns about clause 6, which deals with late-term abortions. At the moment the current law dealing with legal abortions inR v Wald makes no distinction between early and late abortions. Theoretically they are currently legally available and there is no regulation around them.

I am told—and this has been confirmed by the Minister for Health and Medical Research in his contribution to the bill—that presently late-term abortions only occur in accordance with professional standards if there are strong medical reasons for them. I am told that they take place in surgical wards with a team of health professionals, including anaesthetists. I have seen a proposed amendment which would require them to take place in public hospitals with some extra medical oversight. I believe that it is an amendment worthy of consideration. With regard to clause 8, whilst I believe the right to a conscientious religious objection—

[Interruption from gallery]

TEMPORARY SPEAKER (Ms Sonia Hornery): The Clerk will stop the clock. The attendants will remove from the public gallery the person who is interjecting.

Mr ALISTER HENSKENS: With regard to clause 8, whilst I believe the right to a conscientious religious objection is an important incident to the freedom of religion, where a medical practitioner cannot advise a patient or perform a termination because of their religious convictions, in my opinion they have a conflict of interest in a legal sense. The doctor is in a position of trust with the patient, but is unable to give full advice to the patient about all their medical options because of the personal interest of the doctor. In such a situation, the doctor should inform the patient of the conflict. Again, I am prepared to listen to any reasonable amendments proposed to this provision. For the above reasons, I support the decriminalisation of the law of abortion, which the bill seeks to achieve. I believe aspects of the bill can be improved. I hope the House is able to consider amendments reasonably to improve the bill as currently drafted.