5 Commission’s Consultation Outcomes

  1. 5.1 Despite a short time frame set by the terms of reference, the commission was able to meet with a sizeable number of people interested in this review. The commission also received many submissions from organisations and members of the public.

Submissions

  1. 5.2 The commission received 519 written submissions: 433 were from individuals and 86 were from organisations.
  2. 5.3 Eighty submissions were either in a standard form or based on a pro-forma circulated by interest groups; 90% of these objected to abortion decriminalisation on principle. They then divided into different approaches to reform. Some stated no preferred model. Others proposed that additional justification and procedural requirements be included in any new law.1
  3. 5.4 The commission received 30 signatures on two different petitions, and copies of two more petitions sent to Members of Parliament or other entities were forwarded to the commission.2
  4. 5.5 Of the written submissions that were not in a standard form or based on a pro-forma, the majority could be broadly described as opposed to decriminalisation. These submissions tended to be very short or simply stated their opposition to decriminalisation on moral or religious grounds.

Consultation Meetings

  1. 5.6 The commission held 36 meetings with organisations and individuals with an interest in abortion law reform. A list of those consulted is included in Appendix F.
  2. 5.7 The commission appreciates the time and effort that people made, often at short notice, to participate in the process. The meetings provided a wealth of information about current practice and people’s insights into key issues in decriminalisation reform. A clearer idea of preferred legislative options was also developed through frank and open discussion.
  3. 5.8 The following analysis examines responses obtained through submissions and consultations to the questions posed in our Information Paper. Although the terms of reference have the removal of abortion from the Crimes Act as their starting point, the views of those opposed to decriminalisation are included in the interests of transparency.

Ethical and Legal Principles

Autonomy

  1. 5.9 Professional bodies, including the Law Institute of Victoria, Victorian Women Lawyers, the Public Health Association of Australia, and the Australian Medical Association (AMA) Victoria supported decriminalisation.3 They characterised abortion as a matter between a woman and her doctor, with autonomy as the fundamental principle that the law should respect.4 The Paediatric State Committee, Royal Australasian College of Physicians, stated ‘[a]ny departure from this principle risks compromise to the health and rights of the woman concerned’.5
  2. 5.10 Autonomy was also strongly argued by community groups, health organisations and disability organisations,6 which saw no place for the criminal law in regulating what they considered was a woman’s personal decision.7

Moral Objections

  1. 5.11 The Right to Life Association, Endeavour Forum, Australian Christian Lobby, the Salt Shakers, World Federation of Doctors Who Respect Human Life (Queensland Branch), and the Australian Family Association took an alternative view, stressing a moral opposition to abortion and a belief that abortion should remain a crime. This view was also expressed by various Catholic organisations.8Many submitters argued that abortion is potentially harmful to women and that autonomy is a hollow promise.9

Religious Perspectives

  1. 5.12 There was significant reference to religious teachings in written submissions, particularly from members of the Catholic community.Anglicans, Presbyterians, and representatives of the Jewish faith also took part in meetings. Pentecostal and Baptist groups made written submissions. Across these traditions, there is a range of approaches to abortion.
  2. 5.13 The Catholic Archdiocese of Melbourne and other Catholic organisations maintained strong opposition to decriminalisation.10 In contrast, the Anglican Diocese of Melbourne submitted that ‘[we] believe abortion is a serious moral issue, but we do not believe abortion should remain a matter for criminal law’.11 It went on to say ‘[o]ur consensus view is the gradualist position which argues that while the embryo/foetus is fully human from the time of conception, it accrues moral significance and value as it develops’.12
  3. 5.14 Although the Uniting Church did not make a formal submission, the commission understands that ’[t]he church affirmed the dignity of life but understood there were circumstances where an abortion was the only decision a mother could make’.13
  4. 5.15 Consultation with the Jewish Community Council revealed nuances in views across the Jewish faith. The Orthodox view is that abortion should be prohibited where there is no adequately compelling competing ethical goal, for example to save the mother’s life or preserve the woman’s physical or mental health.14
  5. 5.16 Rabbi Aviva Kipen, from the Bentleigh Progressive Synagogue, noted that in Jewish law abortion is allowed in specific circumstances where there is a risk to the physical or mental health of the mother or her ability to parent other children.15
  6. 5.17 She also argued that in a multicultural and secular society, the traditions of one faith should not be entrenched in law at the expense of other faiths’ views. In supporting decriminalisation, she felt that people can still live by their religious traditions without disturbing the moral agency of others. The Jewish Community Council considered it one of Australia’s achievements that one religious doctrine does not determine the behaviour of all.16
  7. 5.18 A review of the major philosophical and theological perspectives on abortion can be found in Appendix B.

Human Rights

  1. 5.19 Many people stressed human rights as an important consideration; however, the arguments put forward depended on their view on abortion. Liberty Victoria, the Castan Centre for Human Rights, and others stressed privacy, equality, and health rights.17 In contrast, the Catholic Justice Agency argued that international human rights law confers rights upon the fetus.18 Still others argued that human rights law should confer fetal rights, as should domestic law.19 Human rights law and abortion is discussed in detail in Appendix D.

Ethical Obligations

  1. 5.20 Some submitters placed a strong emphasis upon the ethical duty of doctors to provide the best, individualised care to their patients and to observe the principle of autonomy. They saw no place for the criminal law in clinical decision making. Some, including AMA Victoria, stated that the profession is adequately regulated and legal proscription potentially interferes with the patient–doctor relationship.
  2. 5.21 Others disagreed, citing the principle of ‘do no harm’ as an ethical basis for why doctors should not perform abortions.20 Some argued that decriminalisation is more about protecting doctors and what they describe as an ‘abortion industry’ than protecting women.21
  3. 5.22 Privacy and confidentiality concerns were raised by individuals and organisations. The Youth Affairs Council of Victoria raised specific concerns about the interrelationship between health information confidentiality and consent. These issues are discussed further in Chapter 8.22
  4. 5.23 Conscience clauses that allow medical staff to refuse to take part in abortions were discussed by many people. Most saw some value in such a provision; however, there was some divergence about its efficacy and content. Conscience clauses are discussed in detail in Chapter 8.

Policy Objectives

Certainty and Clarity in the Law

  1. 5.24 Many people sought clarity and certainty in the law. For decriminalisation opponents, a more stringent application of the Menhennitt ruling was a priority, with some wanting a further tightening of conditions for lawful abortions.23 Others argued that the Menhennitt ruling was conceptually flawed and that there should be an absolute prohibition on abortion.24
  2. 5.25 Many groups were concerned that the Menhennitt ruling lacked clarity, and that the current law was outmoded. Professional bodies including the Law Institute of Victoria put this case strongly. AMA Victoria argued that ‘the legislation cries out for … a more straight forward legal footing under which medical practitioners can work’.25
  3. 5.26 Some medical practitioners felt that the Menhennitt ruling provided the right balance of circumstances to consider. In particular, they welcomed the focus upon the woman’s circumstances and the capacity to apply the test to individual cases, thereby preserving what they saw as their ethical duty to work in the patient’s best interests.26
  4. 5.27 Despite some divergence over the Menhennitt grounds, there was a strong belief that the potential for criminal prosecution puts both women and practitioners at risk.27 The stigma associated with abortion still being a criminal offence was also cited as a reason for women delaying abortions and for suffering humiliation and distress.28
  5. 5.28 There was also a view that abortions should not be illegal when they are performed frequently as this weakens respect for the law.29

Safe, Quality Services

  1. 5.29 Many organisations stressed the policy aim of ensuring positive health outcomes through access to safe, legal abortion. They argued that criminalising abortion does not stop women having abortions, just safe ones.30
  2. 5.30 Others disagreed strongly, arguing that abortion is available on demand in Victoria and the Menhennitt rules were flouted by the profession, particularly in the private sector.31 Among people who suggested significant additional procedural elements in any new law, there was a strong call for abortions to be limited to public hospitals.32
  3. 5.31 On a related issue, submissions from Right to Life Australia and others argued that the decline in maternal deaths associated with abortion was not due to a liberalising of abortion following the Menhennitt ruling, but the post-war advent of antibiotics. They took the view that the often cited connection between backyard abortion and criminal penalty was a myth.33

Abortion and Reproductive Health Policy

  1. 5.32 A significant proportion of health organisations wanted abortion to be seen as an element of a broader commitment to sexual and reproductive health.34 The interrelationships between domestic violence, unwanted pregnancy and abortion were also noted. 35
  2. 5.33 They argued that improved sex education and contraception could contribute to declining rates of abortion.36 It was noted that sexual and reproductive health is included as one of the Victorian Government’s seven health promotion priorities for 2007–12.37
  3. 5.34 The description of abortion as an aspect of health care was strongly opposed by others. They felt that describing abortion as a health matter trivialised moral aspects of decision making, and underplayed what they saw as abortion’s significant physical and psychological health impacts upon women.38

Access and Equity

  1. 5.35 Geographical inequities in access to abortion services, fetal testing, and counselling were frequently raised.39 Practitioners and health service workers from the regions confirmed this.40 Inequities based on age, income, disability, and cultural background were also identified. Many decriminalisation supporters thought that a main policy aim should be to address these existing inequities, and in particular to promote timely access to services.41

Effective Decision Making

  1. 5.36 Decriminalisation supporters strongly argued that women’s reproductive decisions should be respected by the law, and that this was a legitimate policy goal. They stressed accessible, non-judgmental service provision, including non-directive counselling as the means to ensure effective decisions.42
  2. 5.37 Decriminalisation opponents disagreed strongly with characterising abortion as a choice issue. They argued that the policy imperative should be to provide the best possible protection for the mother and child.43 They felt that abortion was not a real choice and were concerned that women are not supported (through either decision-making or procedure-associated counselling).44
  3. 5.38 These people felt that abortion was a profound decision with particular moral significance that required a strict set of conditions and procedural steps before it should attain lawful status. Dr Nicholas Tonti-Filippini presented a detailed submission based on this premise, which also drew upon the findings in the publication Common Ground.45 While maintaining their strong opposition to decriminalisation, several organisations supported this approach, including the Presbyterian Church of Australia, the Australian Christian Lobby and the Respect Life Office.46
  4. 5.39 Some submitters felt that adoption was not adequately promoted as a choice for pregnant women, either by individual medical practitioners and counsellors or by the state government,47 although the Key Centre for Women’s Health said adoption is one of the issues women currently consider during options counselling.

Lowering the Abortion Rate

  1. 5.40 There was general agreement across submissions and consultations that the rate of abortions should decrease48 and a range of views about how to achieve this outcome. Some argued that decriminalisation would increase the rate of abortion because it would send a message to the community that abortion is a legitimate action.49 These people generally felt that the criminal law acted as a deterrent to abortion.50
  2. 5.41 Others argued strongly against this, citing evidence from other jurisdictions where decriminalisation had not significantly escalated abortion rates. In particular, they referred to the experience in Canada, which has a lower rate of abortion than Australia.51 They also drew on historic experience of prohibition not deterring the practice but sending it underground and emphasised lowering the rate of unplanned or unwanted pregnancy through health policy and contraception.

Workforce Issues

  1. 5.42 Some people argued that because abortion is the only medical procedure subject to criminal law it contributes to a reluctance to work in the area.52 Workforce issues were raised consistently in meetings with health organisations, particularly concerns about workforce planning in rural and regional Victoria.53

Grounds for Lawful Abortion

Consent

  1. 5.43 A significant majority of decriminalisation supporters argued that consent should be the only requirement of lawful abortion performed by a qualified practitioner.54 Under this model, the only issue is whether the woman has reached her decision following the usual standards that apply to consent to other medical procedures.55
  2. 5.44 Decriminalisation opponents wanted further requirements that the woman must meet before an abortion could be lawful.
  3. 5.45 Some people felt that equality interests required that the father of the fetus should have to give consent.56 A small minority of submissions included grandparents and others in the class of persons who should give consent.57
  4. 5.46 A significant proportion of pro-forma submissions supported parental consent requirements for all women aged under 16 years.58 The Presbyterian Church of Australia argued that the permission of the Family Court should also be required for people ‘under age’.59 Dr Nicholas Tonti-Filippini recommended that the permission of the Family Court should be required for young women ‘whose age or immaturity makes them vulnerable’.60
  5. 5.47 Youth and health organisations were strongly opposed to mandated parental consent for all young women under 16 years.61 They thought the existing law of consent operated to protect the best interests of the young woman involved. Consent issues and young people are discussed further in Chapters 2 and 8.
  6. 5.48 There was strong consensus from all submissions and consultations that coercion should not be tolerated; however, there was disagreement about whether coercion is a significant problem. There was specific concern that women with a disability be respected in their decision making.62
  7. 5.49 Several submitters were concerned that pressure was applied on women not to have an abortion. They were particularly concerned about protesters outside clinics. Some, including the Health Services Commissioner, suggested ‘bubble zone legislation’.63 Groups such as the Helpers of God’s Precious Infants were strongly opposed to such a proposal.64 These issues are discussed further in Chapter 8.

Threat to Life

  1. 5.50 Most decriminalisation opponents felt strongly that save for circumstances where the woman’s life was at immediate risk abortion should be unlawful.65
  2. 5.51 Others argued that advances in health care meant risks associated with pregnancy are so minimal that instances where a threat to the life of the woman existed would be very rare.66
  3. 5.52 A minority argued that the fetus had primacy over the mother’s life.67 Some organisations felt abortion should also be prohibited following rape, for example Pro Life Australia and the Respect Life Office, Catholic Archdiocese of Melbourne.

Physical and Mental Health

  1. 5.53 Decriminalisation opponents generally rejected physical and mental health issues as legitimate justifications for lawful abortion. Some argued that it was disproportionate to abort a fetus on the basis of maternal health.68 Others said the grounds for abortion were currently too wide, and that if Menhennitt rules were codified the test would need to be much tighter.69
  2. 5.54 Others felt that abortion worsens women’s physical and mental health.70 Some submissions raised concerns about the alleged link between breast cancer and abortion, along with infertility, post-abortion syndrome, depression and suicide. Anne Lastman, author of Redeeming Grief, wrote in her submission: ‘abortion deeply wounds women whether they choose to accept that or not’.71
  3. 5.55 These propositions were strongly contested. Chapter 3 discusses the debate and evidence around physical effects of abortion.
  4. 5.56 Decriminalisation supporters generally argued that consent was the only factor that should determine legality, but there was support for physical and mental health grounds being recognised as legitimate factors within the woman’s decision.72

Social and Economic Factors

  1. 5.57 Decriminalisation supporters also felt that social and economic factors, during and after pregnancy, were legitimate factors for women to consider when making reproductive decisions.73 There was a strong preference that the law not include specific grounds that a woman must satisfy.74
  2. 5.58 Decriminalisation opponents often felt strongly that these factors should not be included as grounds for lawful abortion and saw their possible inclusion as bad public policy.75 They argued that the State should provide better income and other support such as housing.76 Others felt that social and economic risks were overplayed and their inclusion would result in abortions of convenience. Some suggested that women should go through with their pregnancy and then adopt.77

Fetal Abnormality

  1. 5.59 There was no support for the inclusion of fetal abnormality as a specific ground for lawful abortion in future legislation.78
  2. 5.60 Those opposed to abortion rejected it on the argument about fetal interests. Those in favour of autonomy-based decriminalisation did not find it necessary.
  3. 5.61 Disability organisations, including the Victorian Women with Disabilities Network, rejected it on the basis that it may promote an attitude that termination of pregnancy is the only option if fetal testing indicates a possible disability. However, these organisations did not preclude women making a decision to terminate a pregnancy following fetal testing, and supported autonomy-based legislation.79
  4. 5.62 A discussion of clinical issues and fetal abnormality can be found in Chapter 3.

Gestational Limits

  1. 5.63 The majority of submissions and consultation participants were opposed to including gestational limits in any new law of abortion. Opposition was for different reasons.
  2. 5.64 Decriminalisation supporters were generally opposed to the introduction of gestational limits.80 They viewed the stage of pregnancy as a factor the woman considers in her autonomous decision making.81 AMA Victoria reported that gestational age is a factor that informs a medical practitioner’s clinical judgment.
  3. 5.65 Supporters stressed that a tiny proportion of abortions in Victoria are after 20 weeks and were concerned a new law might focus on a minority of cases to the detriment of law reform generally.82
  4. 5.66 Many felt that women having late abortions generally did so under extreme circumstances. It was argued that imposing a blanket prohibition on such terminations would be particularly harsh.83
  5. 5.67 There was an associated concern that decision making may be compromised by having to rush into a decision when factors arise later in pregnancy. This was a strong concern of RANZCOG fellows and the Health Services Commissioner. Specific issues around delays caused by lack of access to health services, including fetal testing in rural and regional areas, were also raised in consultations with regional groups and practitioners.84
  6. 5.68 It was also emphasised that gestational limits create more hoops for women to jump through which, in some cases, means women will travel interstate to access abortions that cannot be accessed within their state.85

[A] staged approach should not be taken. I believe that once the law can be brought into question at any time during a pregnancy, then real access to quality, timely health care for women will be compromised.86

  1. 5.69 A significant majority of anti-decriminalisation submitters were also opposed to including gestational limits in abortion legislation because they consider conception to be the point at which the fetus has rights. These same people were very concerned about late abortion.87
  2. 5.70 Some argued that the offence of child destruction should apply to abortion from 20 weeks. This proposal featured in pro-forma submissions.88 Others took a different approach and argued that a gestational limit be included in abortion legislation so abortion after that time would be a crime.89 The Caroline Chisholm Centre for Health Ethics proposed that after 24 weeks delivery be induced and the child adopted.90
  3. 5.71 A small group of pro-decriminalisation submitters felt that a staged approach to abortion was advantageous. They felt this recognised different maternal reactions, as well as the differences in viability between a fetus at an earlier gestation and at a later stage.91
  4. 5.72 The Anglican Diocese of Melbourne favoured a gradualist approach to abortion law:

While we believe that the destruction even of an early embryo is of moral significance, we believe the moral significance increases with the age and development of the foetus. The significance increases gradually over time, in parallel with its physical development.92

  1. 5.73 One submitter felt that a staged approach was advantageous as it recognised the benefit of earlier terminations for women, as well as reflecting community values.93
  2. 5.74 Some felt that perceived community attitudes about late abortion justified a different approach. They argued that if late abortion is going to be regulated differently, then some clarity is required for practitioners and women. They did not support an absolute prohibition beyond a gestational point. Instead they argued for additional, clearly defined justifications (broadly based on the woman’s health and wellbeing) to apply.94 They did not support criminal sanction for abortions performed later in pregnancy.

Determining Gestational Limits

  1. 5.75 Many submitters did not suggest an appropriate gestational limit because they felt consent should be the only consideration.95 Gestational limits were seen to: cut across the woman’s right to choose;96 make women navigate hurdles;97 and interfere with best-practice standards of care,98which involve the decision being made by a woman in consultation with her doctor.99
  2. 5.76 Some submitters felt that viability was the important indicator for any gestational limit.100 They argued that the fact a child could be born alive was significant,101some citing current premature neonatal clinical practice.102 One submitter summed up this view:

[W]e think the abortion time limit should be lowered as far as possible. It is inconsistent to have intensive care professionals working to save the lives of unborn children, while in other hospitals some unborn children of the same gestational age may be legally aborted.103

  1. 5.77 Many criticisms of using viability as a basis for a gestational limit were raised. Many submitters felt that imposing a gestational limit was arbitrary104 and extremely problematic.105 Health professionals felt that gestational limits in law did not have adequate medical justifications,106 were problematic in implementation,107lacked flexibility to deal with exceptional cases,108 and did not allow for appropriate medical care, which sometimes necessitates a late abortion.109One submitter noted that late abortion will usually involve complex and unique characteristics particular to the woman involved:

There is an individualising nature about late-term abortions that needs to be acknowledged. There will always be extreme cases where abortions will need to be performed beyond the first trimester and well into the second trimester. The law needs to recognise that this is the case.110

  1. 5.78 Some people expressed concern that any gestational limit in abortion law would be subject to controversy and change since medical technology is constantly evolving. There is little consensus on upper gestational time limits across jurisdictions.111Any gestational limit would necessitate constant legislative review to ensure it was consistent with evolving medical practice.112Reproductive Choice Australia noted:

[U]sing viability as a cut off makes for an inherently unstable law. As technology changes, and doctors with different skills in neonatology move from state to state, pressure will come from abortion opponents to change the law again to take account of each new medical claim with regard to viability. The unstable nature of the law would mean that the willingness of medical practitioners to perform terminations will be diminished.

  1. 5.79 It was also clear from submissions that there was no general agreement about where a line based on viability should be drawn. Some submitters felt that no point in time is acceptable for an abortion to be performed.113 Others felt that gestational limits are too difficult to set and that the fetus should be protected from conception.114The range of proposals for where a line based on viability should be placed was generally between 20 and 24 weeks, though one submitter believed it should be 12 weeks,115 and Reproductive Choice Australia thought it should be 26.
  2. 5.80 Some submitters argued that current law and clinical practice has a focus on the woman,rather than fetal interests.116 ‘Using viability as a cut off point intrudes on the therapeutic relationship by placing the focus on a metric assessment rather than health and well-being of the woman.’117 These people saw a woman’s wellbeing as the only acceptable basis for a staged approach.118 For example, a gestational limit might be imposed that only requires more support or in-patient care of the woman if the termination occurs later in gestation.
  3. 5.81 Family Planning Victoria supported a gestational limit of 24 weeks, after which abortions should only be allowed for serious risks to the mother or fetal abnormality. It also acknowledged that the imposition of such a limit raises complex questions about forcing a woman to carry an unwanted fetus119 and the State’s responsibility to provide for the fetus if it is born.120 One submitter said ‘[t]here is a difference between a technical ability to prevent a foetus dying and a woman’s ability to provide for and parent a child to her satisfaction and the child’s requirements’.121

Medical Profession Gatekeeping

  1. 5.82 Decriminalisation supporters consistently took the view that the role of medical practitioners was to advise women about risks and options, and apply their clinical judgement in line with ethical standards and the existing law of consent.122 They were generally opposed to requirements for multiple practitioner sign off, or decision-making panels.123
  2. 5.83 The Public Health Association of Australia, along with other organisations, including AMA Victoria, was concerned that a requirement for multiple practitioners approving abortions might create access barriers for rural women in ‘receiving appropriate medical care’.124
  3. 5.84 There was very little support from medical professionals for mandatory panels for late abortion, as is the case in Western Australia. Consultations revealed significant concerns that the Western Australian panel system had led to women travelling interstate to have an abortion after 20 weeks.125 One RANZCOG fellow was supportive of the WA model.
  4. 5.85 Some doctors argued that decision-making panels should be a matter of best practice within large hospitals but need not be a legislative requirement.126 The Anglican Diocese of Melbourne strongly affirmed the role of hospital ethics committees for late abortions.127
  5. 5.86 Decriminalisation opponents strongly welcomed a requirement for more than one doctor’s approval and/or panels.128 A range of options was put forward about the number of practitioners, the size and function of panels, and who might be involved (doctors, gynaecologists, obstetricians, and psychiatrists).129
  6. 5.87 Dr Nicholas Tonti-Filippini argued for a stepped process which involved an initial consultation with a GP who must not be associated with an abortion provider, such as a hospital or clinic. The GP would be required to arrange and refer to independent counselling, and in cases of mental health concerns also arrange for a psychiatric assessment. Having completed these steps, the woman would then attend a specialist obstetrician/gynaecologist or appropriately qualified GP for a second approval. Once approved, the woman could then proceed to have a lawful abortion carried out by the specialist.
  7. 5.88 Options about the role of medical practitioners in deciding upon the lawfulness of abortion are detailed in the legislative models described in Chapter 6.

Notification Scheme

  1. 5.89 There was strong consensus around the need for accurate data; however, depending on a person’s views on decriminalisation, the nature of the data collected and its purpose was disputed.
  2. 5.90 Decriminalisation supporters generally welcomed the collection of accurate non-identifiable, demographic data for service planning purposes130 that was compliant with health information privacy principles.131 Consultations tended to elicit the response that a formal notification scheme was not necessary but existing data sources and dissemination could be improved.132
  3. 5.91 Decriminalisation opponents sometimes took the view that existing data should be better used. A sizeable number of pro-forma submissions suggested a notification scheme be extended to include an adverse events register above and beyond current systems.133
  4. 5.92 Data issues are discussed in Chapter 8.

Counselling

  1. 5.93 There was strong consensus that good quality, non-directive counselling was a priority, but there was significant divergence about who should deliver counselling, whether it should be compulsory, and whether legislation should mandate minimum information.
  2. 5.94 Counselling, information, and cooling-off periods are discussed in more detail in Chapter 8.

Child Destruction

  1. 5.95 Decriminalisation supporters argued that the offence of child destruction should be repealed and replaced with specific provisions about assault upon a pregnant woman,134or that section 10 be amended to make it clear it did not apply to abortion.135
  2. 5.96 Pro-forma submissions argued that section 10 should remain and the 28-week presumption lowered to 20 weeks, effectively making late abortion a criminal offence.136 Others wanted the existing offence to remain in its current form.137
  3. 5.97 The offence of child destruction is discussed in depth in Chapter 7.

Penalties

  1. 5.98 The Information Paper did not have a specific question about penalties and so views on this issue were largely gathered from consultations.
  2. 5.99 There was consensus among decriminalisation supporters that if gestational limits are included then penalties should be professional rather than criminal. There was support for the application of the Health Professions Registration Act 2005 and a role for the Medical Practitioners Board of Victoria.138
  3. 5.100 Decriminalisation opponents want to see criminal penalties continue to apply.
  4. 5.101 There was consensus that abortions performed by a non-qualified person be a criminal offence.

Conclusions

  1. 5.102 Among organisations which participated in our review, some but not all faith communities were opposed to decriminalisation. Most professional organisations supported law reform that removes abortion from the Crimes Act, as determined by our terms of reference.
  2. 5.103 The Public Health Association of Australia, AMA Victoria, the Paediatric State Committee of the Royal Australasian College of Physicians, the Health Services Commissioner, and the Law Institute Victoria supported decriminalisation models that treat abortion as a matter between a woman and her doctor, with autonomy as the policy basis for law reform.
  3. 5.104 There was a divergence of opinion about whether access to abortion should be regulated differently throughout a woman’s pregnancy. Decriminalisation supporters were generally against a complete prohibition on abortion beyond a gestational limit.
  4. 5.105 Strong consensus was identified around supporting women in decision making. The desirability of good quality, non-directive counselling was a given for most people; however, opinions differed about what makes for effective support and counselling and the issue of compulsory counselling was highly contentious.


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