australia... we're nearly there...., page-54

re: hi debono - snuffles Good question Snuffy. We weren't actuallt talking just Australian law but seeing as you brought it up.
Next question please.


In Victoria, a landmark Supreme Court ruling in 1969 ('the Menhennitt ruling') established that an abortion will be lawful if the accused held an honest belief on reasonable grounds that the abortion was both 'necessary' and 'proportionate.' 'Necessity' in this context means that the abortion was necessary to preserve the pregnant woman from a serious danger to her life or to her physical or mental health, beyond the normal dangers of pregnancy and childbirth, that would result if the pregnancy continued. 'Proportionate' means the abortion was in the circumstances not out of proportion to the danger to be averted. The Menhennitt ruling apparently permits an abortion at any stage of pregnancy. Further, it does not appear to impose a requirement that the abortion be performed by a medical practitioner in order to be lawful.

Although there have been a number of occasions in the last thirty years on which re-examination of the Menhennitt ruling by Victorian courts was likely or possible-the Heath case (1972), the McGoldrick case (1986), the Backwell case (1994) and the Right to Life case (1995)-on none of those occasions has that re-examination occurred. The Menhennitt ruling therefore continues to represent the legal position in Victoria.


In New South Wales, an important District Court ruling in 1971 ('the Levine ruling') established that an abortion would be lawful in that State if there was 'any economic, social or medical ground or reason' upon which a doctor could base an honest and reasonable belief that an abortion was required to avoid a 'serious danger to the pregnant woman's life or to her physical or mental health.' That danger might arise at any time during the pregnancy. The Levine ruling was based on the statement of the law in Victoria in the Menhennitt ruling, but was in the result somewhat more liberal. Like the Menhennitt ruling, the Levine ruling apparently permit an abortion at any stage of pregnancy. Unlike the Menhennitt ruling, however, the Levine ruling seems to impose a requirement that an abortion be performed by a medical practitioner in order to be lawful.

In the decade following the Levine ruling, there were a number of occasions on which courts in New South Wales had (or almost had) the opportunity to re-examine or apply that ruling: the Skinner case (1974), the Liverpool Women's Health Centre case (1975), and the Smart case (1981). None of those cases, however, produced any judicial disagreement with the Levine ruling.

In the 1982 case K v. Minister for Youth and Community Services, the Levine ruling was applied without criticism or challenge by a judge in the Equity Division of the New South Wales Supreme Court.

In 1994 the Levine ruling was re-interpreted and applied in a restrictive way by a Supreme Court judge in the Superclinics case. That case involved a legal action brought by a woman against a medical clinic in respect of the negligent failure to diagnose her pregnancy at a time when she could have had an abortion. The judge in this case refused to award her damages, on the basis that it would have been a crime for her to obtain an abortion had she known she was pregnant at the relevant time. This result-and the restrictive re-interpretation of the Levine ruling that the judge applied-was overturned on appeal by the majority of the New South Wales Court of Appeal. The interpretation of the law given in that appeal by Kirby P now represents the legal position in New South Wales. The Kirby ruling is somewhat more liberal than the original Levine ruling. The Kirby ruling does not confine permissible abortion to cases where a serious danger to the woman's health would arise during the pregnancy, but additionally allows consideration of threats to her health that might arise after the child's birth. The Kirby ruling also indicates that it would be very difficult to establish in court that a medical practitioner lacked the requisite honest and reasonable belief that an abortion was justified to avert a serious danger to a woman's health.


In the Australian Capital Territory the law is unclear. There has been no judicial ruling along the lines of those given by courts in Victoria and New South Wales. It is generally assumed, however, that the legal position in the Australian Capital Territory is the same as the legal position established at any given time by case law in New South Wales.


In Queensland, an important District Court ruling in 1986 ('the McGuire ruling') confirmed that the interpretation of the law offered in Victoria in the Menhennitt ruling also applies in Queensland. This result was affirmed in the 1994 case Veivers v. Connolly, by a single judge of the Supreme Court of Queensland.

A number of cases originating in Queensland (the legal proceedings surrounding the 1983 case K v. T, and the 1989 case F v. F) have also made it clear that Australian courts will not grant an injunction to restrain a pregnant woman from terminating her pregnancy. This is the case even where the applicant is the putative father of the foetus.

There have been no prosecutions since 1986 under the Queensland abortion laws in respect of terminations of pregnancy performed in a medical context. The only case in which those laws have been applied was the Lippiatt case in 1996, which involved a prosecution of a man who had attacked a pregnant woman, injuring the woman and resulting in a stillbirth.


In Tasmania, the law is very unclear. There has been no judicial ruling clarifying the meaning of the statutory provisions that criminalise abortion in that State.


In South Australia, legislation was enacted in 1969 that clarified and generally liberalised the abortion law in that State. Under that legislation an abortion cannot be performed late in pregnancy-possibly from around 22-23 weeks of pregnancy, and certainly from 28 weeks of pregnancy-unless the abortion is performed in good faith solely to preserve the life of the pregnant woman. Earlier in pregnancy, however, an abortion can be performed whenever either the 'maternal health ground' or the 'foetal disability' ground is satisfied. The 'maternal health ground' permits abortion if more risk to the pregnant woman's life, or to her physical or mental health (taking into account her actual or reasonably foreseeable environment) would be posed by continuing rather than terminating the pregnancy. The 'foetal disability ground' will be satisfied if there is a substantial risk that the child would be seriously physically or mentally handicapped if the child were born.

There has been no judicial interpretation of the South Australian legislation. The wording of the grounds on which an abortion will be justified under that legislation, however, suggests that in respect of early abortions the South Australian law is at least as liberal as the legal test in New South Wales under the Kirby ruling.

Procedural requirements are imposed by the South Australian legislation, however, which do not exist in New South Wales (nor in any other Australian jurisdiction except the Northern Territory, and Western Australia in respect of abortions after 20 weeks of pregnancy). The South Australian legislation provides that an abortion will not be lawful unless the pregnant woman has been resident in the State for at least two months before the abortion, and the abortion is performed in a prescribed hospital by a qualified medical practitioner, and a second medical practitioner confirms that the abortion is legally justified. The procedural requirements are waived in emergency situations, where the abortion is immediately necessary to save the pregnant woman's life, or to prevent grave injury to her physical or mental health. Regulations made under the South Australian legislation impose a reporting requirement in respect of every abortion performed in that State.


In the Northern Territory, legislation was enacted in 1974 along the lines of the South Australian legislation. The Northern Territory legislation permits abortion up to 14 weeks of pregnancy where either the 'maternal health ground' or the 'foetal disability ground' is satisfied. These grounds are defined in the same way as in South Australia. There has been no case law in the Northern Territory interpreting these grounds. The Northern Territory legislation additionally requires an abortion at this stage of pregnancy to be carried out in a hospital, by a gynaecologist or obstetrician, and with the support of a second medical opinion.

Any medical practitioner may terminate a pregnancy of up to 23 weeks, however, where the abortion is immediately necessary to prevent grave injury to the physical or mental health of the pregnant woman. Any medical practitioner may perform an abortion at any stage of pregnancy if this is necessary to preserve the pregnant woman's life.


In Western Australia, until recently the legal position was apparently the same as in Queensland. The law was untested, however, as there had been no judicial ruling on the matter in Western Australia.

Legislation enacted in Western Australia in 1998 effected substantial changes to the abortion laws in that State. Abortion remains unlawful unless it is justified under the (amended) health legislation in that State, which now permits abortion up to 20 weeks of pregnancy if one of four grounds is satisfied. The first ground essentially allows abortion 'on request,' provided a second, independent medical practitioner has counselled the pregnant woman about any medical risks associated with abortion and has offered to refer her for counselling about other matters associated with the abortion. Some additional restrictions are imposed where the pregnant patient is aged under 16. The other three grounds permit abortion where: the pregnant woman will suffer serious personal, family or social consequences if the abortion is not performed; serious danger to the pregnant woman's physical or mental health will result if the abortion is not performed; or the pregnant woman's pregnancy is causing serious danger to her mental health.

After 20 weeks of pregnancy an abortion will only be lawful if two doctors agree that the pregnant woman or the foetus has a severe medical condition justifying the abortion. The two doctors must be members of a panel appointed for this purpose by the Minister. The abortion must be performed in a facility approved for this purpose.

Where an abortion is unlawfully performed, the woman herself is no longer subject to any legal sanction in Western Australia. Where an abortion is unlawfully performed by a medical practitioner, he or she is now liable to a fine of $50 000 rather than imprisonment. Where an abortion is unlawfully performed by someone other than a medical practitioner, the penalty is a maximum of five years imprisonment.