Ward supports abortion decriminalisation in NSW

The Member for Kiama, Gareth Ward, has spoken in NSW Parliament for the decriminalisation of abortion (See below for full text of his speech from Hansard).

As the Reproductive Health Care Reform Bill is open to a conscience vote, members on both sides are speaking freely about their reasons for supporting or opposing it.

“When asked my views on this matter at past candidates’ forums I have always been consistent,” said Mr Ward.

“Given the fact that I have always maintained the same view, it would be unpardonably inappropriate for me to change my view now.

“My view remains that abortion should be safe, legal and rare.”

Procuring an abortion is currently an offence under the NSW Crimes Act of 1900, punishable by up to 10 years jail.

Case law has developed to the situation that an abortion is only lawful if the woman’s doctor believes on reasonable grounds that it is necessary to avoid a serious danger to her life or her physical or mental health.

This can take into account economic and social factors as well as medical ones, and that the risks of the abortion are not out of proportion to the danger to be averted.

“These exceptions are given general and broad interpretation, with around 20,000 abortions occurring annually in New South Wales,” said Mr Ward.

“As debate has grown on this matter over the past week, and indeed several decades, I have been surprised to learn how many people wrongfully assume that abortion is already legal.

“Whilst this has been the practice of every other state, our criminal statute remains the outlier of all other jurisdictions.”

Mr Ward said he had spent much time considering the views of his community, reading every email and message that has come to his office.

“The views expressed have been as strong as they have been divergent.

“As a Christian and a believer I have been asked, and even challenged, on the question before the House today.

“I deeply appreciate the prayers and best wishes from many of my community who clearly know this is not necessarily a straightforward and simple matter.”

He quoted a letter from the Reverend Simon Hansford, the Moderator of the Uniting Church in NSW and the ACT, which concluded, “The Uniting Church asserts that abortion is a health and social issue and should not be a criminal issue.”

Mr Ward went on to say, “Whilst we may not like what others do, I do not know a single person who has undertaken an abortion whose heart has not been burdened by a difficult and challenging decision.”

While supportive of decriminalistion, Mr Ward said he is not entirely happy with the Bill, which has been introduced by an independent member of Paliament with the oversight of the NSW Health Minister and the AMA, as it stands.

“I still need to be convinced that the change being sought treats abortions as a last resort and not as a mere alternative means of contraception.

“My support is contingent on the Bill recognising a point at which human life exists and that any decision to terminate after that point only occur due to a highly compelling clinical need.”

He is pleased the Bill calls for two doctors to be involved in a decision to terminate, and has a new offence for people to be criminally pursued if they are not qualified to conduct abortions.

Here is the full text of Mr Ward’s speech – from Hansard 6 August 2019:

Mr GARETH WARD (KiamaMinister for Families, Communities and Disability Services) (18:07): I make my contribution to the Reproductive Health Care Reform Bill 2019. As this is a free vote I believe it is important that I outline to the House, but most importantly to my community who put me in this place, my views on this matter and how I propose to vote. I start by expressing my profound respect for the views that have been so eloquently and mellifluously expressed by all members in this debate. People will not see it on the news or read about it in the paper, but this House is often at its best when considering matters of such profound passion, opinion and emotion. The New South Wales Crimes Act 1900 provides that procuring an abortion is an offence punishable by imprisonment for up to 10 years. The 1900 Act makes clear that administering a drug or a noxious thing, that unlawfully using instruments or other things with the intent to cause a miscarriage will give rise to this offence under the Crimes Act.

It is worth noting that this legislation was carried into law at a time when women did not have the right to vote, let alone stand for Parliament. At a time when the Crimes Act became law our State would not see the first woman elected to this Chamber for a further 2½ decades. It would be more than 100 years until a woman was given her chance to sit in the Speaker’s chair or lead the Government of our State. The circumstances in which an abortion is lawful were widened and broadly defined in 1971 by a decision of the New South Wales District Court in which Judge Levine said that an abortion was not unlawful if a doctor honestly believed on reasonable grounds that:

… the operation was necessary to preserve the woman involved from serious danger to her life or physical or mental health which the continuance of pregnancy would entail.

Mental health has since been interpreted by the courts inCES v Superclinics Australia Pty Ltd to include:

… the effects of economic or social stress that may pertain either during pregnancy or after birth.

The impact of this decision on the current state of New South Wales abortion law is that an abortion is only lawful if the woman’s doctor believes on reasonable grounds that it is necessary to avoid a serious danger to her life or her physical or mental health, taking into account economic and social factors as well as medical ones, and the risks of the abortion are not out of proportion to the danger to be averted. The result of the Levine decision is that New South Wales is predominantly pro-choice in its practices, but not in its law. Under the latter women are not given the right to choose an abortion, but can avoid a breach of the criminal law if it can be demonstrated that the decision to opt for termination fits within a prescribed and recognised judicial exception. These exceptions are given general and broad interpretation, with around 20,000 abortions occurring annually in New South Wales.

As debate has grown on this matter over the past week, and indeed several decades, I have been surprised to learn how many people wrongfully assume that abortion is already legal. Whilst this has been the practice of every other State, our criminal statute remains the outlier of all other jurisdictions. Many have suggested that the 1971 Levine decision, combined with a general reluctance of the police to prosecute, has meant that abortion law reform is unnecessary as the current practice means abortion is basically legal. I make the observation that in 2006 a Sydney doctor was convicted of carrying out an abortion after she omitted to provide a lawful basis for the abortion. In another case in Queensland in 2010 a young couple was tried and faced incarceration for terminating a pregnancy, but was ultimately acquitted.

Given precedent and practice I ask myself this question: In 2019 should the matter of choosing to have an abortion be a matter for the criminal law only? If the criminal law framework is the wrong place for abortion law, where is the next most appropriate place for this matter to be regulated? And what further detail is required? When considering the principal question I have just outlined, other questions arise. Should a woman choosing to have an abortion be committing a crime punishable by up to 10 years in prison? Should a doctor who assists be also considered to have committed a criminal act? Laws passed by Parliament should reflect community views and standards about what is acceptable and appropriate.

When considering my position on the question of criminality I have spent much time considering the views of my community. I have read every single email and message that has come to my office. The views expressed have been as strong as they have been divergent. As a Christian and a believer I have been asked, and even challenged, on the question before the House today. I deeply appreciate the prayers and best wishes from many of my community who clearly know this is not necessarily a straightforward and simple matter. I deeply appreciate your understanding and your care. I received a powerful message from the Reverend Simon Hansford who is the Moderator of the Uniting Church in New South Wales and the Australian Capital Territory. In a message to members of Parliament Reverend Hansford said:

We reject two extreme positions that abortion should never be available and that abortion should be regarded as simply another medical procedure. It is not possible to hold one position that can be applied in every case because peoples’ circumstances will always be different. It is important that women have the space they need to make this difficult decision after careful consideration, and they should have access to high-quality counselling, pastoral care and medical services. The Uniting Church asserts that abortion is a health and social issue and should not be a criminal issue.

I agree with Reverend Hansford. Each and every person walks a different road in life. No set of footprints in the sand is the same. Matthew 7:1 says, “Judge not, that ye be not judged.” Whilst we may not like what others do, I do not know a single person who has undertaken an abortion whose heart has not been burdened by a difficult and challenging decision. I deeply appreciate human frailty and that all of us are far from perfect. I take the statements made during my election periods very seriously. When asked my views on this matter at past candidates’ forums I have always been consistent. Given the fact that I have always maintained the same view, it would be unpardonably inappropriate for me to change my view now. My view remains that abortion should be safe, legal and rare.

Having arrived at the position that abortion should not be regulated by the criminal law, I would never flippantly support any change that merely abolished the existing provisions without any consideration of the ethical and medical framework, especially a bill that has an abject disregard for human life, dignity and clinical ethics. Previous attempts by The Greens to introduce private members’ bills would have, in my opinion, no regard for what I consider to be human life, and I would suggest these attempts by The Greens have been more about politics than good policy. Making the difficult decision to have an abortion is not the same as just another medical procedure. There is a range of factors to consider.

In contrast, this bill has been introduced by a well-respected Independent member of Parliament with oversight from the State’s health Minister and the support of the Australian Medical Association. Even with that support, I still need to be convinced that the change being sought treats abortions as a last resort and not as a mere alternative means of contraception. My support is contingent on the bill recognising a point at which human life exists and that any decision to terminate after that point only occur due to a highly compelling clinical need. The bill provides for a new requirement that two doctors need to be involved in the decision. Currently, only one doctor needs to be consulted. The current practice sets the bar too low. The bill provides for a new offence worthy of inclusion in the criminal law: Persons can be criminally pursued if they are not qualified to conduct abortions. The bill provides for a heavy maximum penalty of seven years.

Much has been said about Zoe’s law in the context of the abortion debate. Although Zoe’s law is not being considered as part of the bill, some commentary on the issue is relevant, given that the current termination practices rest on a judicial decision on a statute that criminalises abortion. The current practice could be reinterpreted by the courts if Parliament were to pass legislation that contradicts the 1971 decision by Judge Levine. Zoe’s law seeks to amend the New South Wales Crimes Act 1900 to enable a person to be prosecuted for grievous bodily harm done to a fetus. To achieve this, Zoe’s law would give legal recognition to an unborn child, defined as the fetus of a pregnant woman of at least 20 weeks’ gestation or, if the period of gestation cannot be established reliably, that has a body mass of at least 400 grams.

During the debate on Zoe’s law, the member for Cronulla moved an amendment to the proposed bill that sought to ensure that nothing presently lawful would become unlawful. Without the bill before us passing this House, the prospect of Zoe’s law could mean a court would need to revisit the Levine decision, given that Zoe’s law would give a fetus rights that do not presently exist. Zoe’s law could have the consequence of limiting or revoking the impact of the Levine decision, leaving women and their doctors in a legal time warp. My support for Zoe’s law was based on the amendment proposed by the member for Cronulla; the “Speakman amendment”. I believe that members would have fewer questions about the potential impact of Zoe’s law should one of the key questions be resolved. [Extension of time]

Passing the bill would place any question of legislative subterfuge beyond doubt. The bill poses a difficult decision for many members, but, on balance, I believe that the criminal law is not best placed to regulate the matter. I support the bill before the House, subject to amendments.

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