By Zoe Rathus AM, Griffith Law School
On Tuesday, Rob Pyne MP, independent member for Cairns, announced the withdrawal of his two abortion reform Bills aimed at de-criminalising and regulating abortion in Queensland. The decision was made in the face of inevitable failure when the LNP advised that its members would vote in a block to oppose the Bills.
As Pyne explained at a Rally the following evening – it would be damaging to see the Bills defeated in the Legislative Assembly. Instead the question has been referred to the Queensland Law Reform Commission (QLRC) by the Attorney-General, Yvette D’Ath MP. Reports about each Bill have already been produced by the Health, Communities, Disability Services and Domestic and Family Violence Committee of the Queensland Parliament, but the QLRC will provides a different process to that of a Private Member’s Bill.
Queenslanders have campaigned for decades for change
It was understandable that some who were present at the Rally at Speakers’ Corner outside Parliament House yesterday, felt somewhat aggrieved as abortion reform was pushed off to somewhere else again. I saw women there who have been doing this for more than 30 years! But I also saw young women and men determined to continue the fight for change.
I had been asked to the Rally to explain exactly what the current law is. Other speakers included Carol Portmann, Australian Obstetrician and Maternal Foetal Medicine specialist, Ros McLennan, General Secretary of the Queensland Council of Unions, Sian Tooker, Counsellor from Children by Choice and Priya De, student activist.
In preparing my ‘speech’ I realised that I had first written about abortion law reform in Queensland as a law student in the mid-1970s. How bizarre that I should be standing in front of a microphone advocating for it 40 years later.
When I was at the Women’s Legal Service in the early 1990s when the ALP first re-gained power in Queensland, we presented a detailed submission for abortion reform to the government, but women’s groups were told it was too soon to try to bring about such change under the new regime.
A decade later when the Taskforce on Women and the Criminal Code handed down its Report, the recommendations to repeal the sections of the Criminal Code which criminalise abortion were not implemented, although many other recommendations were.
What is the current state of law in Queensland?
It is critical for those interested in women’s rights to understand that the law in Queensland effectively criminalises health care professionals who perform abortions or administer drugs to that end, women who do those things to themselves, or anyone who assists a woman. These are not inactive laws.
Section 224 was invoked in 1986 when the Greenslopes abortion clinic was raided and two doctors were charged. The ensuing case clarified a vital aspect of the Criminal Code – that s 282 provided a defence to s 224 – and the doctors were acquitted. Following an earlier Victorian case, Judge McGuire found that abortions could be performed where the health care provider believed on reasonable grounds ‘the act done by him was necessary to preserve the woman from a serious danger to her life or her physical or mental health … and … not out of proportion to the danger to be averted.’
The position adopted by McGuire J, however, was quite limited. He did not extend the defence to cover social or economic grounds as occurred in a 1971 NSW case, but instead said that abortion is not available in Queensland on ‘whim or caprice’ and that ‘abortion on demand’ is not legally justified.
Interestingly s 282 had almost certainly not been enacted to provide a defence to abortion – so it is a single judge decision and not Parliament who has established this interpretation. It is an unusual and rather unstable context in which women’s reproductive services can be offered. There is no absolute guarantee which abortions are legal, and which criminal. Further, this defence only relates to health care professionals and provides no protection to women themselves or others who endeavour to assist them.
Sections 225 and 226 were relied on when a young couple were charged with offences for importing drugs intended to induce a miscarriage. Again there was acquittal when it was found that the imported drugs were not ‘noxious’ to the woman. There have also been some cases in the civil courts which have implied that, in certain circumstances, abortions are legal in Queensland.
The law regulating abortion needs certainty
It is unacceptable to have laws on the books which are largely, but not completely, disregarded. It generates lack of respect for the legal system – and leaves health care professionals and those seeking termination of pregnancy in a limbo land of uncertainty.
It is time to end the long history of impasses and develop laws to legalise abortion services in Queensland. As Rob Pyne informed the Rally, the Deputy Premier, Jackie Trad, the Attorney General, Yvette D’Ath and the Minister for Communities, Women and Youth, Child Safety and the Prevention of Domestic and Family Violence, Shannon Fentiman, have all indicated a determination to change the law. Rob Pyne is to be commended for his courage in creating and progressing these Bills and putting abortion unavoidably on the political agenda.
It is well over a century since the Criminal Code was drafted, people have been campaigning for reform for well over 40 years, and we know the vast majority of the Queenslanders support decriminalisation. It is time to change.
Zoe Rathus AM is a senior lecturer at the Griffith Law School.
Zoe Rathus co-edited with Dr Kylie Burns and Dr Rachel Dioso-Villa a special issue of the Griffith Law Review on ‘Judicial Decision-Making and “Outside” Extra-Judicial Knowledge’, available now.
 Abortion Law Reform (Women’s Right to Choose) Amendment Bill 2016 and Health (Abortion Law Reform) Amendment Bill 2016
 Office of Women’s Policy and Department of Attorney-General, Report of the Taskforce on Women and the Criminal Code, Queensland Government, 2000.
 Criminal Code Act 1899 (Qld), s 224
 Criminal Code Act 1899 (Qld), s 225
 Criminal Code Act 1899 (Qld), s 226
 R v Bayliss and Cullen (1986) 9 Qld Lawyers Reps 8
 R v Davidson (1969) VR 667
 Extract from Menhennitt J’s ruling in R v Davidson as cited in Health, Communities, Disability Services and Domestic and Family Violence Committee, Report on Abortion Law Reform (Woman’s Right to Choose) Amendment Bill 2016 and Inquiry into laws governing termination of pregnancy in Queensland, 2016, p 8
 R v Wald  3 NSWDCR 25
 Extract from McGuire J as cited in Health, Communities, Disability Services and Domestic and Family Violence Committee, Report on Abortion Law Reform (Woman’s Right to Choose) Amendment Bill 2016 and Inquiry into laws governing termination of pregnancy in Queensland, 2016, p 9.
 R v Brennan & Leach (2010) QDC 329.
 Veivers v Connolly (1995) 2 QdR 327; State of Queensland v B  QCS 231; Central Queensland Hospital and Health Service v Q  QSC 89.
 A survey of over 1000 Queenslanders conducted in 2009 by Auspoll for Children by Choice found that almost 4 out of 5 voters wanted the law changed so abortion is no longer a crime. See Children by Choice website: https://www.childrenbychoice.org.au/factsandfigures/attitudestoabortion