The History of Abortion Law

1899: The Criminal Code was passed. Under sections 224-226, it is a criminal offence to have an abortion or assist in one. Anyone found to have procured or assisted in one is liable for imprisonment for up to 14 years.

1967: Abortion law reform is passed in the U.K.

1985: In May, the Queensland police under the Bjelke-Petersen government raided the Greenslopes Fertility Control Clinic which had opened in 1976. Police interrogated women and took away 20,000 confidential patient files. Following this, two doctors (Bayliss and Cullen) were charged with procuring an illegal abortion contrary to Section 224 of the Criminal Code, and with inflicting grievous bodily harm.

The presiding judge at that trial - R v Bayliss and Cullen - was Justice McGuire. He based his ruling on the celebrated English case R v Bourne in 1939 and a Victorian ruling by Justice Menhennit in R v Davidson (1969). The Menhennit ruling defined an abortion as lawful when a doctor had formed a reasonable belief that an abortion was:

necessary to preserve the woman from a serious danger to her life or physical or mental health (not being merely the normal dangers of pregnancy and childbirth) which the continuance of pregnancy would entail; and in the circumstances not out of proportion to the danger to be averted.

Judge McGuire expressed the firm opinion that the R v Davidson ruling also represented the law in Queensland with respect to sections 224 and 282, ie that s282 of the Criminal Code provides the accepted defence to a charge of unlawful abortion under s224.

It would appear from the stance taken by Judge McGuire that a prosecution under s224 will fail unless the Crown can prove the abortion was not performed upon the unborn child “for the preservation of the mother’s life” and was not “reasonable having regard to the patient’s state at the time and to all the circumstances of the case”.

Judge McGuire indicated that the present abortion law in Queensland was uncertain, and that more imperative authority, either the Court of Appeal or Parliament, would be required to effect changes to clarify the law. At the conclusion of the trial, Doctors Bayliss and Cullen were found not guilty on both counts. The basis for lawful abortion in Queensland currently rests on Judge McGuire’s decision.

For more information on the case, see here.

2008: Abortion law is reformed in Victoria.

2009: In April, a 19-year-old Cairns woman was charged under section 225 in the Queensland Criminal Code, for procuring her own miscarriage. Her partner was charged under section 226 for assisting her. The case was heard in the Cairns District Court in October 2010, where the jury brought down not guilty verdicts on both charges.

Police alleged the couple arranged for a relative to send a supply of the drugs misoprostol and mifepristone, used in medical abortions, to Australia from the Ukraine. It is further alleged the woman used the drugs successfully to terminate her pregnancy at 60 days, after the couple decided they were too young to parent. Police claim the couple made no inquiries about the availability of abortion in Cairns.

For more information on the case, see here.

The charges in the Cairns case caused two Cairns doctors providing medication abortion to cease doing so in June 2009, for fear their patients would be similarly targeted. This led to more doctors across the state following suit, including those doctors providing abortion within public hospitals. It was this withdrawal of public services, only offered to women seeking termination after a diagnosis of severe fetal abnormality, fetal death or maternal illness, which forced the Queensland Government to reexamine abortion law.

The Queensland Government introduced changes to section 282 of the Criminal Code in September 2009Section 282 of Queensland’s Criminal Code does not relate specifically to abortion, but provides a defence for doctors charged with performing a procedure unlawfully. It is the defence on which doctors would rely, were they charged over providing abortion. 

The concern of providers was that ‘surgical operation’ was specified as a defence for abortion under section 282, and that medical abortion could not really be defined as a surgical operation. This grey area existed for many years and was repeatedly raised as a concern by doctors. To resolve this issue after these concerns were elevated following the Cairns prosecution, the Government reformed this section of the Code to allow for the provision of medication.

2013: In November, abortion law is reformed in Tasmania.

2016: In May, former independent member for Cairns, Rob Pyne, tabled the Abortion Law Reform (Woman’s Right To Choose) Amendment Bill 2016 in the Queensland Parliament. If passed, the bill would have decriminalised abortion in Queensland by simply repealing the three abortion statutes of the Criminal Code (sections 224, 225 and 226). On 26 May, that bill was referred to the parliamentary Health, Communities, Disability Services, and Domestic and Family Violence Pregnancy Committee for an inquiry.

On 17 August, Rob Pyne MP introduced a second bill, entitled the Health (Abortion Law Reform) Amendment Bill 2016. This was in response to the concern about the lack of gestational limits within his initial piece of legislation, and also included a conscientious objection clause and the establishment of exclusion zones around abortion providers. This bill was intended to sit alongside the first as a companion piece of legislation, to give Queenslanders decriminalisation as well as regulations in health law. It too was referred to the Health Committee for inquiry.

On 26 August, the Health Committee tabled their report into the first bill. Despite the fact that the inquiry heard a significant amount of evidence in support of changing Queensland’s current abortion law from expert witnesses in law, medicine, psychology and ethics, its report declined to recommend that parliament pass Pyne’s bill. The recommendation was at odds with much of what the report included as evidence, including a statement that decriminalising abortion would “effectively align the law of Queensland with Australia’s international legal obligations” under several human rights instruments.

2017: On 17 February, the Health Committee’s report into the second bill was tabled in parliament. The report stated the Committee were unable to agree on a recommendation. Debate on the two bills was expected to commence on 1 March, the first available sitting day after the release of the report.

On 28 February, it was announced that Rob Pyne would be withdrawing his bills from parliament and that the matter would be referred to the Queensland Law Reform Commission for inquiry. The announcements were made at a press conference by Rob Pyne, the Premier, Deputy Premier, and Attorney-General. Rob Pyne later told media that he’d withdrawn the bills because given a previous day’s announcement by the LNP that they'd be voting against both bills, the proposed legislation had no chance of success.

On 21 March, abortion law reform is passed in the Northern Territory.

On 21 June, almost four months from when the referral was announced, its Terms of Reference were published on the Queensland Law Reform Commission website.

On 21 December, the Queensland Law Reform Commission released a consultation paper on abortion law reform. The paper contains a summary of evidence and asked for submissions in response to a set of specific questions on the new legislation by early February 2018.

2018: On 13 February, submissions to the Queensland Law Reform Commission closed.

On 26 May, a referendum to repeal the 8th amendment and reform abortion laws is passed by a large majority in Ireland.

On 8 June, safe access zones are legislated for in NSW. Abortion still remains a crime.

The Queensland Law Reform Commission's report into modernising abortion law, along with draft legislation, is due to be handed to the Attorney-General, Yvette D'Ath by June 30, 2018.


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