What is the Law on Abortion in NSW?

By Jimmy Singh

The Government in NSW have now passed laws to practically ban activists from gathering within 150 meters from an abortion clinic in NSW. The 150 metres is the safe zone surrounding abortion clinics.

Breach of these laws can result in heavy penalties of imprisonment and fines.

Abortion Law and Safe Zone Legislation

The introduction of Safe Zones has again thrown abortion laws and women’s rights into the media spotlight.

In June of 2018 the NSW Upper House passed a bill to legislate Safe Zones surrounding abortion clinics and other women’s reproductive health facilities.

The Safe Zone legislation is in response to the picketing of clinics, unsolicited advice and the alleged harassment of staff and patients by those who oppose abortion.

The aim of the legislation is to protect the privacy and physical safety of those working in the abortion clinics and those who require their services.

NSW Parliament Overview of the Bill is as follows:

The object of this Bill is to provide for safe access zones around reproductive health clinics at which abortions are provided so as to protect the safety and well-being of, and respect the privacy and dignity of, those accessing the services provided at those premises as well as those who need to access those premises in the course of their employment.

How does the Safe Zone Legislation Work?

The new Safe Zone legislation is outlined in the Public Health Amendment (Safe Access to reproductive Health Clinics) Bill 2018.

NSW will now provide a safe access zone up to 150 metres surrounding the clinic premises. It aims to create a “bubble” surrounding abortion clinics. This will mean that patients and staff will have unobstructed access to enter and exit the clinics.

The legislation will ensure safer access to health services and safeguard the privacy and security of those persons seeking abortion procedures and also the staff who provide the services.

Section 98C of the Public Health Act 2010 (NSW) prohibits anyone from harassing, intimidating, threatening, hindering, obstructing or impeding by any means any person who is inside the ‘safe access zone’- being within 150 metres of a reproductive health clinic where abortions are provided.

This extends to prohibiting anyone within the 150m zone from blocking or obstructing a footpath/road leading to the clinic where abortions are provided.

Section 98D prohibits anyone within 150m of an abortion clinic from communicating anything related to abortions if the communication is likely to cause distress or anxiety to another person who can see or hear the communication when accessing, leaving, trying to access or leave, or inside an abortion clinic.

Section 98D excludes employees of the abortion clinic.

Section 98E prohibits intentionally capturing visual images of another person who is inside the 150m safe access zone of an abortion clinic unless there is consent.

The section also prohibits anyone from publishing or distributing a recording of another person (without his/her consent) who was within the 150m safe access zone of a clinic if the recording is likely to lead to an identification of the person.

Exceptions to this include security cameras for security purposes operated by the clinic, employees of the abortion clinic, police who are acting in the course of duties as a police officer if taking photo’s or videos is reasonable in the circumstances to perform those duties, and a person with a reasonable excuse.

Committing any of these ‘safe access zone’ offences in NSW attracts a term of 6 months imprisonment and/or $5,500 fine if it’s a first-time offence. Penalties are heavier for a 2nd or subsequent offence with a sentence of up to 12 months imprisonment and/or $11,000 fine.

The new ban on anti-abortion activism laws in safe access zones in NSW are similar to the existing Victorian Safe Zone laws. Whilst these laws in Victoria have been challenged on the grounds of infringing on freedom of speech and political communication, they were dismissed by the High Court.

Does Australia Have a Right to a Freedom of Political Communication?

As a nation, Australia’s constitution expresses the following rights:

  • Freedom of religion
  • A right to vote
  • A right of protection from having your property taken in unjust terms
  • A right to be trialed by a jury in criminal matters in higher courts
  • A right to not be discriminated against on the basis of the state of residency

This doesn’t expressly include the right to freedom of political communication.

However, the High Court of Australia has said that there is an implied right to freely communicate political views as a critical component for the operation of our system of representative Government.

The case of Lange v ABC (1997) says that a law can be found to breach this implied right of the freedom of political communication if:

  • The law burdens the freedom of political communication; and
  • The law is not reasonably appropriate and doesn’t adapt to serving a legitimate end to support a representative Government system.

If the above two points are established in respect to the new safe access zone laws concerning abortion clinics, then arguably the new laws breach the implied right to the freedom of political communication.

Arguably the new laws are there to protect women who are in highly vulnerable circumstances from harm, mental and physical, which can be considered both reasonably appropriate and adaptive to serve a legitimate end to support a representative Government system which is to reflect the views of the majority of Australians. On that view, the new laws do not impede on the right to a freedom of political communication.

How does this affect Abortion Law in NSW?

The short answer is that it doesn’t. Law on abortion has long been convoluted and made more complicated by the fact that the law varies in each Australian state.

While the introduction of Safe Zones will allow undeterred access for those women seeking an abortion, NSW still considers abortion a crime for both patients and doctors; with penalties of up to 10 years imprisonment.

Sections 82, 83 and 84 of the NSW Crimes Act is as follows:

Section 82.  Whosoever, being a woman with child, unlawfully administers to herself any drug or noxious thing; or unlawfully uses any instrument to procure her miscarriage, shall be liable to penal servitude for ten years.

Section 83. Whosoever unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing; or unlawfully uses any instrument or other means, with intent in such cases to procure her miscarriage, shall be liable to penal servitude for ten years.

Section 84. Whosoever unlawfully supplies or procures any drug or noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used with intent to procure the miscarriage of any woman whether with child or not, shall be liable to penal servitude for life.

When is Abortion considered lawful in NSW?

In NSW interpretations of the Crimes Act have made lawful abortion accessible for a large number of women. The Crimes Act does not completely specify when an abortion would be considered lawful or unlawful.

Abortion can generally be regarded as lawful if it’s conducted to prevent serious implications to a women’s mental or physical health and can extend to social or economical pressures.

Judge Levine established a precedent in 1971 during a criminal prosecution, R v Wald. He said that an abortion would be considered lawful if a doctor was able to say that an individual woman required the procedure to maintain her physical health and mental well-being.

Judge Levine advised abortion should be deemed lawful if the doctor honestly believed “the operation was necessary to preserve the woman involved from serious danger to her life or physical or mental health which the continuance of the pregnancy would entail.”

Regarding mental health, the doctor should also consider “the effects of economic or social stress that may be pertaining to the time” cited Judge Levine.

While the Abortion Laws in NSW remain unchanged for now, the introduction of the Public Health Amendment (Safe Access to Reproductive Health Clinics) Bill has highlighted the need for women to feel safe when accessing healthcare.

The Safe Zone should protect the privacy and well being of patients and staff; and allow them to pursue a legal course of action should the legislation be breached.

We are a criminal defence firm with lawyers in Parramatta, Sydney and Liverpool who are more than happy to discuss any questions you have from this blog.

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