Abortion - the law in Australia
This page summarises the law regarding abortion in each State of Australia - references at the bottom of this page give some relevant sources and more detailed information.
Abortion is considered to be a 'state' matter, so each state has its' own laws regarding abortion.
The only matters that the federal government has control over are the importation of drugs used for abortion (such as RU 486) and the provision of Medicare funds for abortion (currently Medicare funds abortions up to 26 weeks - click here for more information on Senator Barnett's bill to restrict this).
The most recent document detailing abortion laws in Australia was published by the NSW Parliamentary Library in December 2008 - following the passing of the Abortion Law Reform Bill in Victoria.
Title: E-BRIEF Recent Developments in Abortion Law(pdf, 109 KB)
Number of Abortions
In 2005, the federal Parliamentary Library produced a Research Brief on the subject of abortion numbers:
Research Brief no. 9 2004-05
"How many abortions are there in Australia? A discussion of abortion statistics, their limitations, and options for improved statistical collection" - Social Policy Section - 14 February 2005
"Much of the recent debate on abortion in Australia has focused on the question of how many abortions take place in Australia each year. This Research Brief discusses the existing statistics on abortion in Australia, their limitations for accurately quantifying how many abortions take place each year, and some options for improving Australian data on abortion numbers...."
Abortion laws in Australia - 1999
A detailed Research Paper, prepared by the Australian Parliamentary Library (1999).
This detailed article analyses the abortion laws in Australia and their background as at 1998.
Around the States
Up until October 2008, the laws in Victoria and NSW were virtually identical. Both states prohibited abortion in their respective Crimes Act. They were based on S58 of the UK Offences Against the Persons Act 1861 with penalties ranging from 10 to 14 years for anyone convicted of unlawfully using an instrument, drug, or other noxious thing with intent to procure a miscarriage on a woman whether she is pregnant or not.
Defences that allowed for abortion under certain circumstances have been granted by the courts...
In Victoria, Justice Menhennitt ruled in the Supreme Court in 1969 that an abortion is allowable if there is serious danger to the life or physical or mental health of the mother.
In New South Wales, Judge Levine, in the District Court in 1972, ruled that an abortion would be lawful 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'.
To find out more about the abortion law in NSW, read this 2005 NSW Parliamentary Library Briefing Paper, "Abortion and the law in NSW".
Victoria - abortion legalised in October 2008
The Victorian government proposed the Abortion Law Reform Act.
It was passed by the Parliament on 10 October 2008.
The Bill allows abortion for any reason up to 24 weeks of pregnancy. After that time a woman can obtain an abortion if two doctors agree - the reasons that can be used not only cover life and health issues - they include "social circumstances" as well.
During the debate on the Bill, many amendments were proposed (reduce to 20 weeks, conscientious objection for doctors and nurses, etc) but they were ALL defeated.
Click here for our Campaign page on the debate and the Bill.
In the Australian Capital Territory, the law was similar to Victoria up to 2002.
The Osborne Act (introduced by member Paul Osborne) was passed in September 1999 and imposed some further obstacles to abortion. The patient had to be informed of the dangers of abortion and given and shown a booklet containing photos of foetal development; she then had to wait at least 3 days before having an abortion. The Osborne Act was removed after the balance of the Legislative Assembly changed in 2002.
Click here for full details of this legislation on the ACTRTLA website.
In 2002, the ACT Legislative Assembly passed a law that legalised abortion - the Crimes (Abolition of Offence of Abortion) Act 2002 removed abortion from the criminal statute books.
Queensland and Tasmania
These two states have provisions virtually identical to the above provisions (of NSW, Victoria), with similar penalties but in addition excuse doctors who carry "out in good faith and with reasonable care and skill, a surgical operation upon any person for his benefit, or upon an unborn child for the preservation of the mother's life, if the performance of the operation is reasonable, having regard to the patient's state at the time and to all the circumstances of the case."
In Queensland, the McGuire ruling of 1986 declared abortion to be legal if necessary to preserve the mother from a serious danger to her life or health - beyond the normal dangers of pregnancy and childbirth - that would result if the pregnancy continued, and is not disproportionate to the danger being averted.
In his 1986 ruling (R v Bayliss & Cullen) Judge Fred McGuire said “The law in this State has not abdicated its responsibility as guardian of the silent innocence of the unborn. It should rightly use its authority to see that abortion on whim or caprice does not insidiously filter into our society.”
The provisions relating to abortion were similar to those in Victoria.
From 1925 until 2001, Tasmania's Criminal Code prohibited 'unlawful abortion' without actually stating what waslawful or not. While it had never actually been prosecuted, it had been held that Victoria's Menhennit ruling of 1969 and New South Wales' Levine ruling (above) were applicable for Tasmanian law.
In late 2001, the Criminal Code was clarified to state that an abortion must be carried out under a set of criteria resembling those of the South Australian requirements below.
South Australia and the Northern Territory
SA and NT have modern legislation based on the UK Abortion Act of 1967. SA (1969); NT (1974).
A doctor who performs an abortion is excused if 2 doctors are of this opinion, formed in good faith:
· that the continuance of the pregnancy would involve greater risk to the life, physical or mental health of the woman or any existing children than if the pregnancy were terminated; or
· that there is a substantial risk that any child born would be seriously physically or mentally handicapped.
There is also a provision excusing abortions performed by doctors in emergencies. In SA abortions may be performed by doctors up to 28 weeks, in the NT 23 weeks.
In 1998, the WA law, which had previously been virtually identical to that of Queensland and Tasmania, was liberalised to allow abortions in the following circumstances:
(a) The woman has given informed consent; or
(b) the woman will suffer serious personal, family or social consequences if the abortion is not performed; or
(c) serious danger to her physical and mental health will otherwise result; or
(d) the pregnancy is causing serious danger to her physical or mental health.
Abortions up to 20 weeks of pregnancy are allowed on request. Abortions after 20 weeks of pregnancy may only be performed if the baby is likely to be born with severe medical problems - which must be confirmed by two independently appointed doctors.
Sources and Articles:
Information on this page has been obtained from the following sources which contain more detailed information.
Dec 2008 - NSW Parliamentary Library Paper
Title: E-BRIEF Recent Developments in Abortion Law(pdf, 109 KB)
The latest document detailing abortion laws in Australia was published by the NSW Parliamentary Library in December 2008 - following the passing of the Abortion Law Reform Bill in Victoria.]
Feb 2005 - Number of abortions in Australia
Research Brief no. 9 2004-05
"How many abortions are there in Australia? A discussion of abortion statistics, their limitations, and options for improved statistical collection" - Social Policy Section - 14 February 2005 - Commonwealth Parliamentary Library.
NSW - Parliamentary Library Briefing Paper - 2005
An overview of the law in NSW.
Abortion and the law in New South Wales
NSW Parliamentary Library, Briefing Paper No. 09/2005 by Talina Drabsch.
Brief Summary of Australian Abortion Laws (1999).
NSW Right to Life - Click here.
Wikipedia: Abortion in Australia (current)
Abortion laws in Australia
A detailed Research Paper, prepared by the Australian Parliamentary Library (1999)
lengthy and detailed article on the abortion laws in Australia and their background.
A summary of the current abortion laws in Australia is available on the 'pro-abortion' website Children by Choice.
This includes length of pregnancy that abortions are available up to. Click here.
Abortion: time to clarify Australia's confusing laws
MJA - Lachlan J de Crespigny and Julian Savulescu
An article published in the Medical Journal of Australia in 2005, by two doctors who support abortion. It discusses the current abortion laws and proposes that abortion be legalised. Click here.