Wednesday, 5 February 2025

Bills

Constitution Amendment (Abortion) Bill 2024

Statement of compatibility

Sarah MANSFIELD (Western Victoria) (10:04): I lay on the table the statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the charter), I make this statement of compatibility with respect to the Constitution Amendment (Abortion) Bill 2024.

In my opinion, the bill as introduced into the Legislative Council, is compatible with human rights as set out in the charter. I base my opinion on the reasons outlined in this statement.

The main purpose of the bill is to insert into the Constitution Act 1975 provisions that entrench existing legislated provisions for access to abortion services as per the Abortion Law Reform Act 2008.

These include:

• that a registered medical practitioner may perform an abortion on a woman up to 24 weeks of pregnancy

• that a registered medical practitioner may perform an abortion on a woman after 24 weeks of pregnancy in certain circumstances

• that the relevant medications for abortion may be supplied and administered by certain classes of persons.

• that a practitioner who holds a conscientious objection is not obliged to participate in abortion provision, except in emergency circumstances, but must adhere to certain obligations.

Section 48 of the charter states that none of the provisions of the charter affect any laws applicable to abortion. As the charter does not apply to the bill, the bill is compatible with the charter.

Dr Sarah Mansfield MLC

Victorian Greens Member for Western Victoria

Second reading

Sarah MANSFIELD (Western Victoria) (10:04): I move:

That the bill be now read a second time.

Recently the fissures of debate around abortion have cracked back open.

Like many, I have watched from afar as discussions about abortion rights in the US unravel and asked, ‘What about Australia? What about our rights? Can we be sure about them?’

We’ve heard horror stories of women dying as a result of being denied urgent care. At least three women have died in Texas after being denied care for miscarriages because health providers feared prosecution under abortion laws. These included one mother of two who was allowed to bleed to death while being actively cared for in an emergency department, when a simple, routine surgical procedure would have saved her life.

We hear these stories, and we think, ‘Only in America.’

But then only last year I listened with horror to the emboldened words of QLD MPs in the lead-up to the state election.

And again, in October of 2024, Liberal MPs in South Australia attempted to reignite the culture war around abortion – which was only defeated by one vote.

In the face of re-energisation of conservative political agendas, we cannot take access to abortion for granted. We have seen that all it takes is a change in government and access to fundamental health care may be at risk.

If we want to get a sense of how important access is, between a quarter and a third of people who could potentially fall pregnant have an abortion in their lifetimes. It is common, and part of basic, fundamental health care. It is something that has occurred throughout the ages, regardless of the laws of the day. And yet something so common, and so obviously necessary, continues to be one of the most heavily politicised areas of health care.

Ideology and religion have dominated political debate about abortion, and conversely, abortion has had undue influence over politics.

While this is played out more overtly in other countries, Australia has never been immune to this politicisation, which has long determined abortion access.

In fact, you don’t have to go very far back in time to see this.

In 2006, I along with many others celebrated as our federal Parliament voted to give power to approve use of RU 486 – or mifepristone, a medication used for abortion – to the Therapeutic Goods Administration. While giving the drug regulator approval powers over a medication might sound like a dull administrative – and almost unnecessary – vote, it was in fact monumental.

Because prior to that, only the health minister could approve use, following a deal done in the 1990s by the then Prime Minister John Howard with conservative independent Brian Harradine. Access was therefore dependent on the health minister of the day – which from 2003 to 2006 was Tony Abbott, someone who was well known to be staunchly against abortion. This arrangement effectively meant that mifepristone was inaccessible in Australia, despite it being a medication well established as extremely safe and an important option for people requiring an abortion. If ever there was to be an example of politicisation of health care, this was it. The historic vote in 2006 – which came about due to the collective advocacy of women across the federal Parliament – restored things to the way they always should have been.

I remember this clearly because at the time it felt like a huge leap forward had been made. And while it was, the barriers to accessing abortion in Australia were still everywhere.

Abortion was still a crime in Victoria, unless performed to preserve the life or physical or mental health of the pregnant person. The legal basis for this was the Menhennitt ruling in 1969, whereby abortion could be performed if necessary due to risks to the person’s mental or physical health that were greater than that expected with a normal pregnancy. While this meant that abortion was not illegal in certain circumstances, the fear of potential criminal prosecution – for both the pregnant person and the medical practitioner providing care – was always a lingering concern. It also meant that stigma remained, and access was very limited, with abortions mainly being performed in private clinics, but still sometimes clandestinely and unsafely.

The stories of women in the USA dying, injured, or becoming gravely unwell are stories that were commonplace in Victoria prior to the 1970s. Before then, it is estimated that 90,000 women every year in Australia had illegal abortions, facing fear and risking injury and death to do so. While the rich and well connected could quietly access abortions from qualified doctors in hospital, the poor had to access so-called ‘backyard’ abortions, typically performed by people with no or limited medical training in unsanitary conditions, where the motivation was usually profit rather than compassion. Police were an integral part of this system, accepting bribes to stay quiet and tip off abortion providers about potential raids. It was a lucrative business.

Between 1939 and 1983, septic abortion, where a severe infection following abortion occurs, was by far and away the leading cause of maternal mortality at the Royal Women’s Hospital, killing hundreds of women. Deaths due to abortion would have greatly exceeded official statistics, with abortion frequently not included in the cause of death. Those whose abortions went wrong before making it to hospital often had their bodies secretly disposed of to avoid prosecution of the person who performed it. And these deaths occurred because abortion was criminalised.

In 2008, two years after the federal vote on RU 486, I was working as a junior doctor and found myself in conversations with people who were working on a campaign to decriminalise abortion in Victoria. Many of them were integral to achieving the reforms up to that point, and it is rarely recognised that but for a handful of people, like Jo and Bertram Wainer, abortion would still have to be accessed via illegal networks today. The campaign was successful. I know some members of this current Parliament were here then and were part of the historic vote to decriminalise abortion in Victoria. Abortion is now fully decriminalised in all states and territories, but it’s taken up until the past five to 10 years for this to occur – it’s still very much in the rear-view mirror.

Legislative changes don’t immediately lead to improved access.

Even after the RU 486 vote in 2006, it took another six years for mifepristone to be registered with the Therapeutic Goods Administration, and until just two years ago, it was still far more heavily regulated than in other comparable countries.

And still now in Victoria, there are approximately 15 local government areas with no prescribers of this medication. We have a long way to go, and there are many people out there – within both government and organisations across our communities – who are working so hard to address access barriers. They are making gains. But this could all be at risk if the laws that enable their work are wound back.

I stand here today to introduce a bill to Parliament that will enshrine the access to safe abortion that is afforded in this state into the Victorian constitution – thereby protecting this hard-fought right from the whims of a future government.

The bill will enshrine the Abortion Law Reform Act in the constitution in a way that makes it extremely difficult for future Victorian governments or parliaments to pass legislation to limit, dilute or abolish the current provisions providing for the legal access to abortion – requiring a special majority, or three-fifths of the Parliament, for the act to be diminished.

However, it will not prevent future nonsubstantive amendments to abortion laws, such as the making of typographical changes, nor will it hinder any legislative amendments that seek to broaden or expand upon the current provisions regarding access to abortion services. One obvious change that is needed is for the act to use gender-inclusive language to ensure all those who need abortion services – women and gender-diverse people – are protected under the law.

The Abortion Law Reform Act stipulates that medical professionals can perform abortions and can supply and administer drugs for an abortion and regulates the performing of abortions both before and after 24 weeks of pregnancy, including through the provision and administration of drugs.

The act provides that medical professionals can conscientiously object to performing abortions in non-emergency circumstances, but they must refer a patient seeking an abortion to a medical professional who does not have a conscientious objection.

Three years ago Victoria took the important step of entrenching the legislative ban against unconventional gas extraction, known as fracking, in the constitution.

The time is now to do the same for abortion.

The Abortion Law Reform Act 2008 was and is landmark legislation that says to all Victorians unambiguously in law: my body, my choice when it comes to accessing abortion in this state. Entrenching this law in the constitution sends a clear message to anyone who thinks that they can start kicking around abortion as the latest political football. My body, my choice. Always.

Lee TARLAMIS (South-Eastern Metropolitan) (10:14): I move:

That debate on this bill be adjourned for two weeks.

Motion agreed to and debate adjourned for two weeks.