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Legislative Assembly for the ACT: 2002 Week 9 Hansard (21 August) . . Page.. 2560 ..

MR HUMPHRIES (continuing):

I would argue that there are good reasons not to upset the apple cart of laws on abortion as they presently stand in the territory. Present laws do not, in effect, prevent general access to abortion, and therefore opponents change the present law at some risk. There is good reason to fear the consequences of a wholesale repeal of the checks and balances surrounding the practice of abortion in the territory at the present time.

Let me explode a few myths which have been put forward in the course of this debate today. The first of those is the myth that abortion is illegal in the ACT. It is not, and has probably not been illegal for at least the last 30 years. In fact, I have my doubts about whether it has ever been illegal. It is at best ignorant, at worst deceptive, to look at sections 44 to 46 of the Crimes Act-originally a New South Wales act adopted in the ACT many decades ago-and to say that they represent the state of the law in the ACT. They do not.

Women do not go to jail in the ACT for seeking or having abortions. They have not gone to jail in at least the last 30 years, and I have not been able to discover a single case at any time in the territory's history in which a woman, or indeed anybody else associated with the practice of abortion, has suffered that penalty.

The law of the territory is not succinctly stated in the Crimes Act. The law of the territory is a combination of sections 44 to 46 of the Crimes Act and the common law. The common law is relevant when one looks at the word "unlawfully" which appears in sections 43, 44 and 45. I quote section 44 in particular:

A pregnant woman who unlawfully-

(a) administers to herself any drug or noxious thing; or

(b) uses any instrument or other means;

intending to procure her own miscarriage is guilty of an offence punishable, on conviction, by imprisonment for 10 years.

The use of the word "unlawfully" allows court-made law, common law, to be used to interpret what the effect of that section and other sections with that word in it mean. For a number of years it has been the case in the ACT that abortions have been conducted almost certainly under the protection of the law, because it is the widespread belief of legal practitioners in the territory, certainly of successive directors of public prosecutions and others, that the law in its present state, both statute and common law, does not permit the prosecution of women who seek abortions or the people who assist them in that process.

In those circumstances it is untrue to say that the ACT's laws are in urgent need of amendment. There is a cosmetic quality about this legislation, particularly the first of the bills being debated today, which we need to understand and appreciate.

I do not favour wide access. I regret that fact, and I have to say quite bluntly that if I was in a position to change it I would. But I cannot equally deny that wide access exists, lawfully, in the territory at the present time. Mr Berry has been jousting at the windmill of illegality for years, but it is no more real for that fact.

There is a warning to those supporting the Crimes (Abolition of Offence of Abortion) Bill 2002. You are not merely sweeping away a piece of archaic law; you are not simply taking an anachronism and relegating it to the trash heap. You are taking out one of the

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