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Legislative Assembly for the ACT: 1998 Week 5 Hansard (26 August) . . Page.. 1334 ..

MR OSBORNE (continuing):

Australian jurisdiction they have been all but ignored since the 1970s. The now defunct provisions of the Crimes Act in Western Australia did not prevent one abortion from going ahead, just as the existing provisions in the ACT's Crimes Act do not prevent a single abortion from proceeding here.

According to the Australian Bureau of Statistics publication "Australian Social Trends 1998" there were 95,200 abortions in this country in 1996. Let me put that another way, Mr Speaker: 27 per cent of all known pregnancies in 1996, excluding miscarriage and stillbirth, ended in abortion. And a study published in the Medical Journal of Australia in 1995 suggests this figure is more likely an underestimate because it is based on Medicare claims and a claim is not lodged for every abortion. I should add, Mr Speaker, that the study also found that 60 per cent of women surveyed stated financial concerns as their reason for having a termination and only 5 per cent listed health.

The real picture is probably closer to that which exists in South Australia which is one of only two jurisdictions in Australia that collect population-based data on induced abortions. According to the Australian Institute of Health and Welfare, there were 5,535 abortions in South Australia in 1996 - that is to say, 29.5 per cent of all pregnancies in South Australia that year - and 51 per cent of all teenage pregnancies were terminated.

Mr Speaker, as I said, the criminal law in Western Australia did not prevent one abortion because Australia's unique legal attitude to the procedure has been developed by case law. In getting around Australia's criminal laws on abortion, this country's judges have introduced a defence not found in any other common law jurisdiction in the world - the defence of necessity.

The key ruling was handed down by Justice Menhennitt who looked at the law and found that it said people may not "unlawfully" procure an abortion, or a miscarriage. Now the word "unlawfully" is sprinkled through our laws like decoration and generally it is not given any weight in legal argument. But Menhennitt looked at the word "unlawfully" and decided that if there was such a thing as an unlawful abortion it followed that there must be such a thing as a lawful one. He then said that to prove a miscarriage was unlawful the Crown must establish that the accused did not honestly believe, on reasonable grounds, that the act done by him was necessary to preserve the woman from a serious danger to her life or her mental health - not being the normal dangers of pregnancy and childbirth - which the continuance of the pregnancy would entail. This decision focused attention on what constituted a danger to a woman's life or her physical or mental health. District Court Judge Levine then applied his mind to this decision and decided:

It would be for the jury to decide whether there existed in the case of each woman any economic, social or medical ground or reason which in their view could constitute reasonable grounds upon which an accused could honestly and reasonably believe there would result a serious danger to her physical or mental health.

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