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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Abortion Legislation Reform Bill 2023
Contents
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- The Criminal Code
amended
3. Act amended 3
4. Section 199 deleted 3
Part 3 -- Public Health Act 2016
amended
5. Act amended 4
6. Section 4 amended 4
7. Part 12C heading replaced 4
Part 12C -- Abortion
8. Part 12C Divisions 1 to 5 inserted 5
Division 1 -- Preliminary
202MA. Terms used 5
202MB. Performance of abortion 7
Division 2 -- Performance of abortion by registered
health practitioners
202MC. Performance of abortion by medical
practitioner at not more than 23 weeks 8
202MD. Performance of medical abortion by
certain other registered health
practitioners at not more than 23 weeks 8
202ME. Performance of abortion by medical
practitioner at more than 23 weeks 8
120--1 page i
Abortion Legislation Reform Bill 2023
Contents
202MF. Performance of medical abortion by
certain registered health practitioners on
direction of medical practitioner or
prescribing practitioner 10
202MG. Assistance by certain registered health
practitioners or students in performance of
abortion by medical practitioner or
prescribing practitioner 11
202MH. Registered health practitioner with
conscientious objection to abortion 13
202MI. Obligations of medical practitioners and
prescribing practitioners who refuse to
participate in abortion 14
202MJ. Student with conscientious objection to
abortion 16
202MK. Compliance with Division relevant to
professional conduct or performance 16
202ML. The Criminal Code s. 177 does not apply 17
202MM. Consent to performance of abortion on
children who are not mature minors 17
Division 3 -- Performance of abortion by unqualified
persons
202MN. Unqualified person must not perform
abortion 19
Division 4 -- Protection from criminal liability
202MO. Person does not commit offence of
abortion on themselves 21
Division 5 -- Information about abortion
202MP. Chief Health Officer may direct certain
persons to give information about abortion 21
202MQ. Purposes for which Chief Health Officer
may record, use or disclose information
given under s. 202MP 23
202MR. Protection from liability 24
9. Part 12C Division 6 heading inserted 25
Division 6 -- Safe access to premises at which
abortions are provided
10. Section 202N amended 25
11. Section 202O amended 25
12. Section 280 amended 25
13. Section 297 amended 26
14. Section 299 amended 26
15. Section 306C inserted 27
306C. Review of amendments made by Abortion
Legislation Reform Act 2023 27
page ii
Abortion Legislation Reform Bill 2023
Contents
16. Part 21 inserted 27
Part 21 -- Transitional provisions for Abortion
Legislation Reform Act 2023
323. Term used: commencement day 27
324. Decisions made under Health
(Miscellaneous Provisions) Act 1911
s. 334(7)(a) before commencement day 28
325. Applications made under Health
(Miscellaneous Provisions) Act 1911
s. 334(9) before commencement day 28
Part 4 -- Other Acts amended
Division 1 -- Children's Court of Western
Australia Act 1988 amended
17. Act amended 29
18. Section 20 amended 29
Division 2 -- Coroners Act 1996 amended
19. Act amended 29
20. Section 3B inserted 29
3B. Certain deaths following performance of
abortion not reportable deaths 29
Division 3 -- Evidence Act 1906 amended
21. Act amended 30
22. The Second Schedule amended 30
Part 6 -- Offence under the Public Health Act 2016
Division 4 -- Freedom of Information Act 1992
amended
23. Act amended 31
24. Schedule 1 clause 13A inserted 31
13A. Abortion information 31
Division 5 -- Guardianship and Administration
Act 1990 amended
25. Act amended 32
26. Section 3 amended 32
27. Section 13 amended 33
28. Part 3 Division 3 Subdivision 1 heading inserted 33
Subdivision 1 -- Preliminary
29. Section 18A inserted 33
18A. Application of Division 33
page iii
Abortion Legislation Reform Bill 2023
Contents
30. Part 3 Division 3 Subdivision 2 heading inserted 34
Subdivision 2 -- Appeals by leave from
determinations of State Administrative
Tribunal generally
31. Section 19 amended 34
32. Part 3 Division 3 Subdivision 3 inserted 34
Subdivision 3 -- Appeals from decisions relating to
consent to performance of abortion
25A. Appeal from Tribunal's decision relating to
consent to performance of abortion 34
25B. Grounds 35
25C. Status of State Administrative Tribunal's
decision pending disposal of appeal 36
33. Part 3 Division 3 Subdivision 4 heading inserted 36
Subdivision 4 -- General provisions about appeals
34. Section 26 amended 36
35. Section 28 amended 37
36. Section 30 amended 37
37. Section 31 amended 37
38. Section 34 amended 37
39. Section 35 amended 38
40. Section 45 amended 38
41. Section 110G amended 39
42. Section 110U replaced 39
110U. Priority of treatment decision in advance
health directive 39
43. Section 110ZD amended 40
44. Section 110ZH amended 40
45. Part 9D Division 2 Subdivision 1 heading inserted 41
Subdivision 1 -- Urgent treatment
46. Section 110ZI amended 41
47. Part 9D Division 2 Subdivision 2 heading inserted 42
Subdivision 2 -- Other treatment
48. Section 110ZIB inserted 43
110ZIB. Application of Subdivision 43
49. Section 110ZJ amended 43
50. Part 9D Division 2 Subdivision 3 inserted 43
Subdivision 3 -- Performance of abortion
110ZLA. Treatment decisions in relation to
performance of abortion 43
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Abortion Legislation Reform Bill 2023
Contents
110ZLB. Performance of abortion without advance
health directive or State Administrative
Tribunal consent an offence 44
110ZLC. Effect of State Administrative Tribunal
consent 45
110ZLD. Reliance by health professional on
treatment decisions in respect of
performance of abortion 45
51. Part 9D Division 3 Subdivision 1 heading inserted 47
Subdivision 1 -- Declarations for purposes of
s. 110ZJ
52. Section 110ZM amended 47
53. Part 9D Division 3 Subdivision 2 inserted 47
Subdivision 2 -- Decisions for purposes of
s. 110ZLA
110ZNA. Only Full Tribunal to act under this
Subdivision 47
110ZNB. Who may apply for decision under this
Subdivision 48
110ZNC. Notice of hearing 48
110ZND. State Administrative Tribunal consent to
performance of abortion 50
54. Section 110ZT amended 51
Division 6 -- Health (Miscellaneous Provisions)
Act 1911 amended
55. Act amended 52
56. Section 331 amended 52
57. Section 332 inserted 52
332. Application of Part to abortion 52
58. Section 334 deleted 53
59. Section 335 amended 53
page v
Western Australia
LEGISLATIVE ASSEMBLY
Abortion Legislation Reform Bill 2023
A Bill for
An Act --
• to amend The Criminal Code to remove offences related to
abortion; and
• to amend the Public Health Act 2016 to regulate the performance
of abortion by registered health practitioners and prohibit the
performance of abortion by certain persons; and
• to make consequential and related amendments to other Acts;
and
• for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Abortion Legislation Reform Bill 2023
Part 1 Preliminary
s. 1
1 Part 1 -- Preliminary
2 1. Short title
3 This is the Abortion Legislation Reform Act 2023.
4 2. Commencement
5 This Act comes into operation as follows --
6 (a) Part 1 -- on the day on which this Act receives the
7 Royal Assent;
8 (b) the rest of the Act -- on a day fixed by proclamation.
page 2
Abortion Legislation Reform Bill 2023
The Criminal Code amended Part 2
s. 3
1 Part 2 -- The Criminal Code amended
2 3. Act amended
3 This Part amends The Criminal Code.
4 4. Section 199 deleted
5 Delete section 199.
page 3
Abortion Legislation Reform Bill 2023
Part 3 Public Health Act 2016 amended
s. 5
1 Part 3 -- Public Health Act 2016 amended
2 5. Act amended
3 This Part amends the Public Health Act 2016.
4 6. Section 4 amended
5 (1) In section 4(1) insert in alphabetical order:
6
7 health profession has the meaning given in the Health
8 Practitioner Regulation National Law (Western
9 Australia) section 5;
10 student, in relation to a health profession, has the
11 meaning given in section 202MA;
12
13 (2) In section 4(1) in the definitions of medical practitioner,
14 midwife and nurse delete "profession;" and insert:
15
16 profession (other than as a student);
17
18 (3) In section 4(1) in the definition of nurse practitioner after
19 "profession" insert:
20
21 (other than as a student)
22
23 7. Part 12C heading replaced
24 Delete the heading to Part 12C and insert:
25
26 Part 12C -- Abortion
27
page 4
Abortion Legislation Reform Bill 2023
Public Health Act 2016 amended Part 3
s. 8
1 8. Part 12C Divisions 1 to 5 inserted
2 At the beginning of Part 12C insert:
3
4 Division 1 -- Preliminary
5 202MA. Terms used
6 In this Part --
7 abortion drug means a medicine of a kind used to
8 cause the termination of a pregnancy of a person;
9 dispense means to supply in accordance with a
10 prescription;
11 health service has the meaning given in the Health
12 Services Act 2016 section 7;
13 health service provider has the meaning given in the
14 Health Services Act 2016 section 6;
15 medicine has the meaning given in the Medicines and
16 Poisons Act 2014 section 3;
17 perform an abortion has the meaning given in
18 section 202MB;
19 person, when used in the context of the person upon
20 whom an abortion is or may be performed, means a
21 person of any age;
22 pharmacist means a person registered under the Health
23 Practitioner Regulation National Law (Western
24 Australia) in the pharmacy profession (other than as a
25 student);
26 prescribe, in relation to an abortion drug, means to
27 issue a prescription for the drug;
28 prescribing practitioner has the meaning given in
29 section 202MD(1);
30 prescription, in relation to an abortion drug, has the
31 same meaning as it has, in relation to a Schedule 4 or 8
page 5
Abortion Legislation Reform Bill 2023
Part 3 Public Health Act 2016 amended
s. 8
1 poison, in the Medicines and Poisons Act 2014
2 section 7(1);
3 primary clinical supervisor, in relation to a student,
4 means a registered health practitioner who has primary
5 responsibility for supervising the clinical work
6 performed by the student in connection with the
7 student's program of study for, or the student's clinical
8 training in, the student's health profession;
9 private hospital service provider has the meaning
10 given in the Private Hospitals and Health Services
11 Act 1927 section 2(1);
12 registered health practitioner means a person
13 registered under the Health Practitioner Regulation
14 National Law (Western Australia) to practice a health
15 profession (other than as a student);
16 relevant health profession means any of the following
17 health professions --
18 (a) Aboriginal and Torres Strait Islander health
19 practice;
20 (b) medical;
21 (c) midwifery;
22 (d) nursing;
23 (e) pharmacy;
24 (f) a health profession that is prescribed by the
25 regulations for the purposes of this definition;
26 relevant person means --
27 (a) a registered health practitioner who is
28 authorised under Division 2 to perform an
29 abortion; or
30 (b) the chief executive of a health service provider
31 that provides health services that include, or are
32 related to, the performance of abortions under
33 Division 2; or
page 6
Abortion Legislation Reform Bill 2023
Public Health Act 2016 amended Part 3
s. 8
1 (c) a private hospital service provider that provides
2 health services that include, or are related to,
3 the performance of abortions under Division 2;
4 student, in relation to a health profession, means a
5 person whose name is entered in a student register for
6 the health profession as being currently registered
7 under the Health Practitioner Regulation National Law
8 (Western Australia);
9 student register, for a health profession, has the
10 meaning given in the Health Practitioner Regulation
11 National Law (Western Australia) section 5;
12 supply, in relation to an abortion drug, has the same
13 meaning as it has, in relation to a poison, in the
14 Medicines and Poisons Act 2014 section 8.
15 202MB. Performance of abortion
16 (1) A person performs an abortion on another person if
17 the person does any act with the intention of causing
18 the termination of the pregnancy of the other person.
19 (2) Without limiting subsection (1), the acts to which it
20 applies include the following --
21 (a) prescribing an abortion drug for the other
22 person;
23 (b) supplying an abortion drug to the other person;
24 (c) administering an abortion drug to the other
25 person;
26 (d) carrying out a surgical or other procedure on
27 the other person.
28 (3) However, assisting a person to do an act done with the
29 intention of causing the termination of a pregnancy of
30 another person is not an act to which subsection (1)
31 applies.
page 7
Abortion Legislation Reform Bill 2023
Part 3 Public Health Act 2016 amended
s. 8
1 Division 2 -- Performance of abortion by registered
2 health practitioners
3 202MC. Performance of abortion by medical practitioner at
4 not more than 23 weeks
5 A medical practitioner is authorised to perform an
6 abortion on a person who is not more than 23 weeks
7 pregnant.
8 202MD. Performance of medical abortion by certain other
9 registered health practitioners at not more than
10 23 weeks
11 (1) In this section --
12 prescribing practitioner means a person who is a
13 member of a class of registered health practitioners
14 that --
15 (a) is authorised under the Medicines and Poisons
16 Act 2014 to prescribe an abortion drug; and
17 (b) is prescribed by the regulations for the purposes
18 of this definition.
19 (2) A prescribing practitioner is authorised to perform an
20 abortion on a person who is not more than 23 weeks
21 pregnant if the prescribing practitioner performs the
22 abortion by --
23 (a) prescribing an abortion drug for the person; or
24 (b) supplying or administering an abortion drug to
25 the person.
26 202ME. Performance of abortion by medical practitioner at
27 more than 23 weeks
28 (1) Subject to subsection (5), a medical practitioner (the
29 primary practitioner) is authorised to perform an
page 8
Abortion Legislation Reform Bill 2023
Public Health Act 2016 amended Part 3
s. 8
1 abortion on a person who is more than 23 weeks
2 pregnant if --
3 (a) the primary practitioner, after having regard to
4 the matters referred to in subsection (2),
5 reasonably believes that performing the
6 abortion is appropriate in all the circumstances;
7 and
8 (b) the primary practitioner has consulted with at
9 least 1 other medical practitioner who, after
10 having regard to the matters referred to in
11 subsection (2), also reasonably believes that
12 performing the abortion is appropriate in all the
13 circumstances.
14 (2) In considering whether performing an abortion on a
15 person is appropriate in all the circumstances, a
16 medical practitioner must have regard to --
17 (a) all relevant medical circumstances; and
18 (b) the person's current and future physical,
19 psychological and social circumstances; and
20 (c) the professional standards and guidelines
21 commonly accepted by members of the medical
22 profession that apply to the medical practitioner
23 in relation to the performance of the abortion.
24 (3) Subsection (2) does not limit the matters to which a
25 medical practitioner may have regard in considering
26 whether performing an abortion on a person is
27 appropriate in all the circumstances.
28 (4) For the purposes of subsection (1)(b) --
29 (a) the principal place of practice (as defined in the
30 Health Practitioner Regulation National Law
31 (Western Australia) section 5) of a medical
32 practitioner with whom the primary practitioner
33 consults need not be in Western Australia; and
page 9
Abortion Legislation Reform Bill 2023
Part 3 Public Health Act 2016 amended
s. 8
1 (b) if a medical practitioner with whom the primary
2 practitioner consults does not believe that
3 performing the abortion is appropriate in all the
4 circumstances, this does not prevent the
5 primary practitioner from consulting with
6 another medical practitioner.
7 (5) In an emergency, a medical practitioner is authorised to
8 perform an abortion on a person who is more than
9 23 weeks pregnant without complying with
10 subsection (1) if the medical practitioner considers it
11 necessary to perform the abortion to save the person's
12 life or save another foetus.
13 202MF. Performance of medical abortion by certain
14 registered health practitioners on direction of
15 medical practitioner or prescribing practitioner
16 (1) In this section --
17 directing practitioner means --
18 (a) in relation to the performance of an abortion on
19 a person who is not more than 23 weeks
20 pregnant -- a medical practitioner or
21 prescribing practitioner; and
22 (b) in relation to the performance of an abortion on
23 a person who is more than 23 weeks
24 pregnant -- a medical practitioner.
25 (2) A pharmacist is authorised to perform an abortion on a
26 person by supplying an abortion drug to the person if
27 the pharmacist, in accordance with the Medicines and
28 Poisons Act 2014 --
29 (a) dispenses the abortion drug to the person under
30 a prescription issued by a directing practitioner;
31 or
page 10
Abortion Legislation Reform Bill 2023
Public Health Act 2016 amended Part 3
s. 8
1 (b) otherwise supplies the abortion drug to the
2 person on the direction of a directing
3 practitioner.
4 (3) A registered health practitioner in a relevant health
5 profession (other than pharmacy) is authorised to
6 perform an abortion on a person by supplying or
7 administering an abortion drug to the person if the
8 registered health practitioner, in accordance with the
9 Medicines and Poisons Act 2014, supplies or
10 administers the abortion drug to the person on the
11 direction of a directing practitioner.
12 202MG. Assistance by certain registered health practitioners
13 or students in performance of abortion by medical
14 practitioner or prescribing practitioner
15 (1) A registered health practitioner in a relevant health
16 profession, acting in the course of the practice of that
17 profession, is authorised to assist in the performance of
18 an abortion on a person by --
19 (a) a medical practitioner as authorised under
20 section 202MC or 202ME(1); or
21 (b) a prescribing practitioner as authorised under
22 section 202MD(2).
23 (2) Subsection (1) does not apply in relation to the
24 performance of an abortion that the registered health
25 practitioner knows is being performed by --
26 (a) a medical practitioner other than as authorised
27 under section 202MC or 202ME(1); or
28 (b) a prescribing practitioner other than as
29 authorised under section 202MD(2).
page 11
Abortion Legislation Reform Bill 2023
Part 3 Public Health Act 2016 amended
s. 8
1 (3) A student in a relevant health profession is authorised
2 to assist in the performance of an abortion on a person
3 by --
4 (a) a medical practitioner as authorised under
5 section 202MC or 202ME(1); or
6 (b) a prescribing practitioner as authorised under
7 section 202MD(2).
8 (4) An act done by a student under subsection (3) must be
9 done --
10 (a) in the course of the student's program of study
11 for, or clinical training in, the relevant health
12 profession; and
13 (b) under the supervision of --
14 (i) the medical practitioner or prescribing
15 practitioner; or
16 (ii) a registered health practitioner in the
17 relevant health profession who is
18 assisting in the performance of the
19 abortion under subsection (1); or
20 (iii) the student's primary clinical
21 supervisor.
22 (5) Subsection (3) does not apply in relation to the
23 performance of an abortion that the student knows is
24 being performed by --
25 (a) a medical practitioner other than as authorised
26 under section 202MC or 202ME(1); or
27 (b) a prescribing practitioner other than as
28 authorised under section 202MD(2).
page 12
Abortion Legislation Reform Bill 2023
Public Health Act 2016 amended Part 3
s. 8
1 202MH. Registered health practitioner with conscientious
2 objection to abortion
3 (1) A registered health practitioner who has a
4 conscientious objection to abortion has the right to
5 refuse to do any of the following --
6 (a) perform an abortion on a person;
7 (b) assist in the performance of an abortion on a
8 person;
9 (c) make a decision under section 202ME(1)(a) or
10 (b) whether performing an abortion on a person
11 is appropriate in all the circumstances;
12 (d) advise a person about the performance of an
13 abortion on the person or another person.
14 (2) If a registered health practitioner who has a
15 conscientious objection to abortion is requested by a
16 person (the requesting person) to do a thing referred to
17 in subsection (1), the registered health practitioner
18 must disclose the practitioner's conscientious objection
19 to the requesting person immediately after the
20 requesting person makes the request.
21 (3) Subsection (1) does not limit the circumstances in
22 which a registered health practitioner may refuse to do
23 any of the things referred to in that subsection.
24 (4) This section does not limit or otherwise affect any duty
25 of a registered health practitioner to do a thing referred
26 to in subsection (1) in an emergency.
page 13
Abortion Legislation Reform Bill 2023
Part 3 Public Health Act 2016 amended
s. 8
1 202MI. Obligations of medical practitioners and
2 prescribing practitioners who refuse to participate
3 in abortion
4 (1) This section applies if --
5 (a) a person (the patient) --
6 (i) requests a medical practitioner or
7 prescribing practitioner to perform an
8 abortion on the patient; or
9 (ii) makes a request to a medical
10 practitioner that would require the
11 medical practitioner to make a decision
12 under section 202ME(1)(a) whether
13 performing an abortion on the patient is
14 appropriate in all the circumstances; or
15 (iii) requests a medical practitioner or
16 prescribing practitioner to advise the
17 patient about the performance of an
18 abortion on the patient;
19 and
20 (b) the medical practitioner or prescribing
21 practitioner (the refusing practitioner) refuses
22 the request, whether for the reason that the
23 refusing practitioner has a conscientious
24 objection to abortion or for some other reason.
25 (2) The refusing practitioner must --
26 (a) without delay transfer the patient's care --
27 (i) to another registered health practitioner
28 who, in the refusing practitioner's
29 reasonable belief, can provide the
30 requested service; or
page 14
Abortion Legislation Reform Bill 2023
Public Health Act 2016 amended Part 3
s. 8
1 (ii) to a health facility at which, in the
2 refusing practitioner's reasonable belief,
3 the requested service can be provided by
4 another registered health practitioner;
5 or
6 (b) immediately give the patient information,
7 approved by the Chief Health Officer for the
8 purposes of this paragraph, about how to locate
9 or contact a registered health practitioner of the
10 kind referred to in paragraph (a)(i) or a facility
11 of the kind referred to in paragraph (a)(ii).
12 (3) Information approved by the Chief Health Officer for
13 the purposes of subsection (2)(b) --
14 (a) must be kept up-to-date, and reviewed at least
15 once each year, by the Chief Health Officer;
16 and
17 (b) must not contain details of --
18 (i) a registered health practitioner unless, in
19 the Chief Health Officer's reasonable
20 belief, the registered health practitioner
21 is of the kind referred to in
22 subsection (2)(a)(i); or
23 (ii) a health facility unless, in the Chief
24 Health Officer's reasonable belief, the
25 facility is of the kind referred to in
26 subsection (2)(a)(ii).
27 (4) This section does not limit or otherwise affect any duty
28 of the refusing practitioner to do a thing referred to in
29 subsection (1)(a) in an emergency.
page 15
Abortion Legislation Reform Bill 2023
Part 3 Public Health Act 2016 amended
s. 8
1 202MJ. Student with conscientious objection to abortion
2 (1) In this section --
3 supervising person, in relation to a student in a
4 relevant health profession, means --
5 (a) a medical practitioner performing an abortion
6 as authorised under section 202MC or
7 202ME(1); or
8 (b) a prescribing practitioner performing an
9 abortion as authorised under section 202MD(2);
10 or
11 (c) a registered health practitioner in the relevant
12 health profession who is assisting in the
13 performance of an abortion as authorised under
14 202MG(1); or
15 (d) the student's primary clinical supervisor.
16 (2) A student in a relevant health profession who has a
17 conscientious objection to abortion has the right to
18 refuse to assist in the performance of an abortion on a
19 person.
20 (3) If a student in a relevant health profession who has a
21 conscientious objection to abortion is requested by a
22 supervising person to assist in the performance of an
23 abortion on a person, the student must disclose the
24 student's conscientious objection to the supervising
25 person immediately after the supervising person makes
26 the request.
27 202MK. Compliance with Division relevant to professional
28 conduct or performance
29 (1) In considering a matter under a written law about a
30 registered health practitioner's professional conduct or
page 16
Abortion Legislation Reform Bill 2023
Public Health Act 2016 amended Part 3
s. 8
1 performance, regard may be had to whether the
2 practitioner --
3 (a) performs an abortion on a person other than as
4 authorised under section 202MC, 202MD(2),
5 202ME(1) or 202MF(2) or (3); or
6 (b) assists in the performance of an abortion on a
7 person other than as authorised under
8 section 202MG(1); or
9 (c) contravenes section 202MH(2) or 202MI(2).
10 (2) The matters to which subsection (1) applies include --
11 (a) a notification under the Health Practitioner
12 Regulation National Law (Western Australia);
13 or
14 (b) a complaint under the Health and Disability
15 Services (Complaints) Act 1995.
16 202ML. The Criminal Code s. 177 does not apply
17 The Criminal Code section 177 does not apply to a
18 restriction or obligation under this Division.
19 202MM. Consent to performance of abortion on children
20 who are not mature minors
21 (1) In this section --
22 guardian, in relation to a person who is under 18 years
23 of age, means a person who at law has parental
24 responsibility, as defined in the Family Court Act 1997
25 section 68, for the person.
26 (2) This section applies if --
27 (a) a registered health practitioner proposes to
28 perform an abortion under this Division on a
29 person (the patient) who is under 18 years of
30 age; and
page 17
Abortion Legislation Reform Bill 2023
Part 3 Public Health Act 2016 amended
s. 8
1 (b) the registered health practitioner considers --
2 (i) that the patient does not have the
3 capacity to consent, on their own behalf,
4 to the abortion being performed on them
5 because the patient has not achieved a
6 sufficient understanding and
7 intelligence to enable them to
8 understand fully what is proposed; or
9 (ii) that it is not possible to ascertain
10 whether the patient has the capacity to
11 consent, on their own behalf, to the
12 abortion being performed on them;
13 and
14 (c) the patient agrees to a parent or guardian of the
15 patient participating in the decision-making as
16 to whether the abortion is performed on the
17 patient by the registered health practitioner.
18 (3) If this section applies --
19 (a) the parent or guardian referred to in
20 subsection (2)(c) may consent or refuse consent
21 to the performance of the abortion on the
22 patient by the registered health practitioner; and
23 (b) to the extent that the common law would
24 require the performance of the abortion on the
25 patient by the registered health practitioner to
26 be authorised by a court, that requirement does
27 not apply.
28 (4) This section does not affect the inherent jurisdiction of
29 the Supreme Court or the jurisdiction of the Family
30 Court of Western Australia.
page 18
Abortion Legislation Reform Bill 2023
Public Health Act 2016 amended Part 3
s. 8
1 Division 3 -- Performance of abortion by unqualified
2 persons
3 202MN. Unqualified person must not perform abortion
4 (1) An unqualified person who performs an abortion on
5 another person commits a crime.
6 Penalty for this subsection: imprisonment for 7 years.
7 (2) Subsections (3) to (8) set out who is an unqualified
8 person for the purposes of subsection (1).
9 (3) In relation to the performance of an abortion on a
10 person who is not more than 23 weeks pregnant by
11 prescribing an abortion drug for the person, an
12 unqualified person is a person who is not --
13 (a) a medical practitioner; or
14 (b) a prescribing practitioner.
15 (4) In relation to the performance of an abortion on a
16 person who is not more than 23 weeks pregnant by
17 supplying an abortion drug to the person, an
18 unqualified person is a person who is not --
19 (a) a medical practitioner; or
20 (b) a prescribing practitioner; or
21 (c) a pharmacist supplying the abortion drug as
22 referred to in section 202MF(2); or
23 (d) a registered health practitioner in a relevant
24 health profession (other than pharmacy)
25 supplying the abortion drug as referred to in
26 section 202MF(3).
27 (5) In relation to the performance of an abortion on a
28 person who is more than 23 weeks pregnant by
29 supplying an abortion drug to the person, an
30 unqualified person is a person who is not --
31 (a) a medical practitioner; or
page 19
Abortion Legislation Reform Bill 2023
Part 3 Public Health Act 2016 amended
s. 8
1 (b) a pharmacist supplying the abortion drug as
2 referred to in section 202MF(2); or
3 (c) a registered health practitioner in a relevant
4 health profession (other than pharmacy)
5 supplying the abortion drug as referred to in
6 section 202MF(3).
7 (6) In relation to the performance of an abortion on a
8 person who is not more than 23 weeks pregnant by
9 administering an abortion drug to the person, an
10 unqualified person is a person who is not --
11 (a) a medical practitioner; or
12 (b) a prescribing practitioner; or
13 (c) a registered health practitioner in a relevant
14 health profession (other than pharmacy)
15 administering the abortion drug as referred to in
16 section 202MF(3).
17 (7) In relation to the performance of an abortion on a
18 person who is more than 23 weeks pregnant by
19 administering an abortion drug to the person, an
20 unqualified person is a person who is not --
21 (a) a medical practitioner; or
22 (b) a registered health practitioner in a relevant
23 health profession (other than pharmacy)
24 administering the abortion drug as referred to in
25 section 202MF(3).
26 (8) In relation to the performance of an abortion not
27 referred to in subsections (3) to (7), an unqualified
28 person is a person who is not a medical practitioner.
page 20
Abortion Legislation Reform Bill 2023
Public Health Act 2016 amended Part 3
s. 8
1 Division 4 -- Protection from criminal liability
2 202MO. Person does not commit offence of abortion on
3 themselves
4 Despite any other enactment, a person who performs an
5 abortion on themselves, or consents to or does any act
6 to assist in the performance of an abortion on
7 themselves, does not commit an offence.
8 Division 5 -- Information about abortion
9 202MP. Chief Health Officer may direct certain persons to
10 give information about abortion
11 (1) The Chief Health Officer may, for a purpose referred to
12 in section 202MQ, direct a relevant person to give to
13 the Chief Health Officer such demographic or clinical
14 information about abortions performed under
15 Division 2 as is specified in the direction.
16 (2) A direction under subsection (1) may --
17 (a) specify the information by reference to a class
18 of information; and
19 (b) specify the manner and form in which the
20 information must be given to the Chief Health
21 Officer.
22 (3) The information specified in a direction under
23 subsection (1) --
24 (a) can only be statistical or summary information;
25 and
26 (b) cannot include any particulars from which it
27 may be possible to ascertain --
28 (i) the identity of a person on whom an
29 abortion has been performed; or
page 21
Abortion Legislation Reform Bill 2023
Part 3 Public Health Act 2016 amended
s. 8
1 (ii) the identity of a person who has
2 performed, or has assisted in the
3 performance of, an abortion on a person.
4 (4) Without limiting subsection (3), the information
5 specified in a direction under subsection (1) cannot
6 include any of the following --
7 (a) the postcode, suburb or address (street or
8 postal) of a person referred to in
9 subsection (3)(b);
10 (b) the postcode, suburb or address (street or
11 postal) of the particular hospital or other health
12 facility at which an abortion has been
13 performed;
14 (c) the age of a person on whom an abortion has
15 been performed, other than as an age category
16 including a range of not less than 5 years (for
17 example, under 15 years of age, 15 to 19 years
18 of age, and so on);
19 (d) the particular race or nationality of a person on
20 whom an abortion has been performed;
21 (e) the gestational age of the foetus at the date on
22 which an abortion was performed on a person,
23 other than as an age range (for example,
24 9 weeks or less, 10 to 13 weeks, and so on);
25 (f) the particular reason for an abortion having
26 been performed on a person, including any
27 particular clinical reason (for example, the
28 diagnosis of a particular abnormality or
29 condition in the foetus or in the person on
30 whom the abortion was performed);
31 (g) the particular clinical method (for example, the
32 particular abortion drug prescribed or the
33 particular surgical procedure carried out) used
34 to perform an abortion on a person;
page 22
Abortion Legislation Reform Bill 2023
Public Health Act 2016 amended Part 3
s. 8
1 (h) the particular clinical details or outcomes
2 associated with the admission to a hospital of a
3 person on whom an abortion has been
4 performed.
5 (5) A direction under subsection (1) may be given to 1 or
6 more named relevant persons, 1 or more classes of
7 relevant persons, or to all relevant persons.
8 (6) A relevant person who is given a direction under
9 subsection (1) must comply with the direction.
10 (7) Information given to the Chief Health Officer by a
11 relevant person under subsection (6) must meet the
12 requirements set out in subsections (3) and (4).
13 (8) The Criminal Code sections 177 and 178 do not apply
14 to the obligations of a relevant person under
15 subsections (6) and (7).
16 202MQ. Purposes for which Chief Health Officer may
17 record, use or disclose information given under
18 s. 202MP
19 The Chief Health Officer may record, use or disclose
20 information given to the Chief Health Officer under
21 section 202MP(6) for the following purposes --
22 (a) enabling the provision, monitoring, planning
23 and evaluation of health services relating to
24 abortion;
25 (b) compiling and publishing statistical or
26 summary information relating to abortion;
27 (c) enabling research, education and training in
28 respect of abortion, including the use of
29 abortion drugs and health services relating to
30 abortion;
page 23
Abortion Legislation Reform Bill 2023
Part 3 Public Health Act 2016 amended
s. 8
1 (d) the performance by the Chief Health Officer of
2 functions under this Act;
3 (e) the administration or enforcement of this Act.
4 202MR. Protection from liability
5 (1) This section applies if --
6 (a) a relevant person acting in good faith gives
7 information to the Chief Health Officer under
8 section 202MP(6); or
9 (b) the Chief Health Officer acting in good faith
10 records, uses or discloses information, given to
11 the Chief Health Officer under
12 section 202MP(6), in accordance with
13 section 202MQ.
14 (2) If this section applies --
15 (a) no civil or criminal liability is incurred in
16 respect of giving, recording, using or disclosing
17 the information; and
18 (b) giving, recording, using or disclosing the
19 information is not to be regarded as --
20 (i) a breach of any duty of confidentiality
21 or secrecy imposed by law; or
22 (ii) a breach of professional ethics,
23 professional standards or any principles
24 of conduct applicable to the person's
25 employment; or
26 (iii) unprofessional conduct.
27
page 24
Abortion Legislation Reform Bill 2023
Public Health Act 2016 amended Part 3
s. 9
1 9. Part 12C Division 6 heading inserted
2 Before section 202N insert:
3
4 Division 6 -- Safe access to premises at which abortions
5 are provided
6
7 10. Section 202N amended
8 In section 202N delete "Part" and insert:
9
10 Division
11
12 11. Section 202O amended
13 In section 202O delete "Part -- " and insert:
14
15 Division --
16
17 12. Section 280 amended
18 (1) In section 280 delete "Proceedings for an offence under this
19 Act" and insert:
20
21 (1) Proceedings for an offence under this Act (other than
22 an offence under section 202MN(1))
23
24 (2) At the end of section 280 insert:
25
26 (2) Subsection (1) does not limit the ability of a person to
27 commence or conduct the prosecution of an offence if
28 the person has authority at law to do so.
page 25
Abortion Legislation Reform Bill 2023
Part 3 Public Health Act 2016 amended
s. 13
1 (3) Proceedings for an offence under section 202MN(1)
2 may only be commenced by a person referred to in the
3 Criminal Procedure Act 2004 section 20(3)(a)(ii) or
4 (iii) or (b).
5
6 13. Section 297 amended
7 After section 297(5) insert:
8
9 (6) This section is in addition to and does not affect the
10 operation of section 141(2), 188(5), 202MR(1)(b) or
11 (2), 298(3) or 299(6).
12
13 14. Section 299 amended
14 (1) In section 299(3) and (5) delete "A" and insert:
15
16 Subject to subsection (5A), a
17
18 (2) After section 299(5) insert:
19
20 (5A) Information about abortion can only be disclosed under
21 subsection (3), or requested under subsection (5), if the
22 information --
23 (a) meets the requirements set out in
24 section 202MP(3) and (4); and
25 (b) is disclosed or requested for a purpose referred
26 to in section 202MQ.
27 (5B) Subsection (5A) does not prevent the disclosure under
28 subsection (3) of information about a suspected offence
29 under section 202MN(1) to a person referred to in
30 section 280(3).
31
page 26
Abortion Legislation Reform Bill 2023
Public Health Act 2016 amended Part 3
s. 15
1 15. Section 306C inserted
2 After section 306B insert:
3
4 306C. Review of amendments made by Abortion
5 Legislation Reform Act 2023
6 (1) The Minister must review the operation and
7 effectiveness of the amendments made to this Act by
8 the Abortion Legislation Reform Act 2023, and prepare
9 a report based on the review, as soon as practicable
10 after the 5th anniversary of the day on which the
11 Abortion Legislation Reform Act 2023 section 15
12 comes into operation.
13 (2) The Minister must cause the report to be laid before
14 each House of Parliament as soon as practicable after it
15 is prepared, but not later than 12 months after the
16 5th anniversary.
17
18 16. Part 21 inserted
19 After section 322 insert:
20
21 Part 21 -- Transitional provisions for Abortion
22 Legislation Reform Act 2023
23 323. Term used: commencement day
24 In this Part --
25 commencement day means the day on which the
26 Abortion Legislation Reform Act 2023 section 16
27 comes into operation.
page 27
Abortion Legislation Reform Bill 2023
Part 3 Public Health Act 2016 amended
s. 16
1 324. Decisions made under Health (Miscellaneous
2 Provisions) Act 1911 s. 334(7)(a) before
3 commencement day
4 (1) This section applies if --
5 (a) before commencement day under the Health
6 (Miscellaneous Provisions) Act 1911
7 section 334(7)(a) 2 medical practitioners agree
8 that the performance of an abortion on a person
9 is justified; and
10 (b) immediately before commencement day the
11 abortion has not yet been performed on the
12 person.
13 (2) On and after commencement day, to the extent that
14 section 202ME(1) applies to the performance of the
15 abortion --
16 (a) the requirements referred to in
17 section 202ME(1)(a) and (b) are taken to have
18 been complied with; and
19 (b) a medical practitioner is authorised under that
20 section to perform the abortion.
21 325. Applications made under Health (Miscellaneous
22 Provisions) Act 1911 s. 334(9) before commencement
23 day
24 If, immediately before commencement day, an
25 application made to the Children's Court under the
26 Health (Miscellaneous Provisions) Act 1911
27 section 334(9) has not been determined by the
28 Children's Court, the application is taken to have been
29 discontinued on commencement day.
30
page 28
Abortion Legislation Reform Bill 2023
Other Acts amended Part 4
Children's Court of Western Australia Act 1988 amended Division 1
s. 17
1 Part 4 -- Other Acts amended
2 Division 1 -- Children's Court of Western Australia Act 1988
3 amended
4 17. Act amended
5 This Division amends the Children's Court of Western
6 Australia Act 1988.
7 18. Section 20 amended
8 In section 20(1):
9 (a) in paragraph (b) delete "1999; and" and insert:
10
11 1999.
12
13 (b) delete paragraph (d).
14 Division 2 -- Coroners Act 1996 amended
15 19. Act amended
16 This Division amends the Coroners Act 1996.
17 20. Section 3B inserted
18 After section 3A insert:
19
20 3B. Certain deaths following performance of abortion
21 not reportable deaths
22 (1) Despite the definition of reportable death in section 3,
23 a Western Australian death of a child is not a
24 reportable death for the purposes of this Act if the
25 death occurs in the following circumstances --
26 (a) an abortion is performed on a person;
page 29
Abortion Legislation Reform Bill 2023
Part 4 Other Acts amended
Division 3 Evidence Act 1906 amended
s. 21
1 (b) the child is born alive and subsequently dies
2 following the performance of the abortion;
3 (c) at the time the abortion is performed, the
4 performance of the abortion does not constitute
5 an offence under a written law.
6 (2) Subsection (1) applies whether the death occurs before,
7 on or after the day on which the Abortion Legislation
8 Reform Act 2023 section 20 comes into operation.
9
10 Division 3 -- Evidence Act 1906 amended
11 21. Act amended
12 This Division amends the Evidence Act 1906.
13 22. The Second Schedule amended
14 (1) In The Second Schedule Part 1 delete the item relating to s. 199.
15 (2) At the end of The Second Schedule insert:
16
17 Part 6 -- Offence under the Public Health Act 2016
18
Provision Description of offence
s. 202MN(1) Performance of abortion by unqualified person
19
page 30
Abortion Legislation Reform Bill 2023
Other Acts amended Part 4
Freedom of Information Act 1992 amended Division 4
s. 23
1 Division 4 -- Freedom of Information Act 1992 amended
2 23. Act amended
3 This Division amends the Freedom of Information Act 1992.
4 24. Schedule 1 clause 13A inserted
5 After Schedule 1 clause 13 insert:
6
7 13A. Abortion information
8 (1) Matter is exempt matter if its disclosure would reveal or
9 tend to reveal the identity of anyone as --
10 (a) a person on whom an abortion mentioned in the
11 Public Health Act 2016 Part 12C Division 2 has
12 been performed; or
13 (b) a person who has performed, or has assisted in the
14 performance of, an abortion mentioned in the Public
15 Health Act 2016 Part 12C Division 2.
16 (2) Without limiting subclause (1), matter is exempt matter
17 under that subclause if it contains an identification number,
18 or other identifying particular, by reference to which a
19 person referred to in subclause (1)(a) or (b) can be
20 identified.
21 (3) Matter is not exempt matter under subclause (1) merely
22 because its disclosure would reveal or tend to reveal --
23 (a) the applicant as a person on whom an abortion
24 mentioned in the Public Health Act 2016 Part 12C
25 Division 2 has been performed; or
26 (b) the identity of a person who has performed on the
27 applicant, or has assisted in the performance of on
28 the applicant, an abortion mentioned in the Public
29 Health Act 2016 Part 12C Division 2; or
page 31
Abortion Legislation Reform Bill 2023
Part 4 Other Acts amended
Division 5 Guardianship and Administration Act 1990 amended
s. 25
1 (c) the applicant as a person who has performed, or has
2 assisted in the performance of, an abortion
3 mentioned in the Public Health Act 2016 Part 12C
4 Division 2.
5 (4) This clause applies whether the abortion was performed
6 before, on or after the day on which the Abortion
7 Legislation Reform Act 2023 section 24 comes into
8 operation.
9
10 Division 5 -- Guardianship and Administration Act 1990
11 amended
12 25. Act amended
13 This Division amends the Guardianship and Administration
14 Act 1990.
15 26. Section 3 amended
16 After section 3(1) insert:
17
18 (1A) In this Act, a reference to the performance of an
19 abortion on a person --
20 (a) is a reference to the provision of treatment to
21 the person, including treatment referred to in
22 the Public Health Act 2016 section 202MB(2),
23 with the intention of causing the termination of
24 the pregnancy of the person; and
25 (b) does not include a reference to the provision of
26 treatment to the person without that intention
27 even if the treatment results or may result in the
28 termination of the pregnancy of the person.
29
page 32
Abortion Legislation Reform Bill 2023
Other Acts amended Part 4
Guardianship and Administration Act 1990 amended Division 5
s. 27
1 27. Section 13 amended
2 After section 13(e) insert:
3
4 (ea) jurisdiction to consent or refuse consent to the
5 performance of abortion on persons who are
6 unable to make reasonable judgments in respect
7 of whether abortions should be performed on
8 them; and
9
10 28. Part 3 Division 3 Subdivision 1 heading inserted
11 At the beginning of Part 3 Division 3 insert:
12
13 Subdivision 1 -- Preliminary
14
15 29. Section 18A inserted
16 After section 18 insert:
17
18 18A. Application of Division
19 (1) Subdivision 2 provides for appeals, by leave as
20 provided in that Subdivision, from determinations of
21 the State Administrative Tribunal generally.
22 (2) Subdivision 3 provides for appeals from decisions of
23 the State Administrative Tribunal under
24 section 110ZND to consent or refuse consent to the
25 performance of an abortion on a person.
26 (3) There is no appeal from a determination of the State
27 Administrative Tribunal other than as provided under
28 this Division.
29
page 33
Abortion Legislation Reform Bill 2023
Part 4 Other Acts amended
Division 5 Guardianship and Administration Act 1990 amended
s. 30
1 30. Part 3 Division 3 Subdivision 2 heading inserted
2 Before section 19 insert:
3
4 Subdivision 2 -- Appeals by leave from determinations of
5 State Administrative Tribunal generally
6
7 31. Section 19 amended
8 In section 19:
9 (a) delete "Division," and insert:
10
11 Subdivision,
12
13 (b) in paragraph (b) delete "President," and insert:
14
15 President.
16
17 (c) delete the passage that begins with "but otherwise" and
18 continues to the end of the section.
19 32. Part 3 Division 3 Subdivision 3 inserted
20 After section 25 insert:
21
22 Subdivision 3 -- Appeals from decisions relating to consent
23 to performance of abortion
24 25A. Appeal from Tribunal's decision relating to consent
25 to performance of abortion
26 (1) A party to a proceeding for a decision of the State
27 Administrative Tribunal under section 110ZND to
28 consent or refuse consent to the performance of an
29 abortion on a person may appeal from the decision.
page 34
Abortion Legislation Reform Bill 2023
Other Acts amended Part 4
Guardianship and Administration Act 1990 amended Division 5
s. 32
1 (2) The appeal lies to the Court of Appeal.
2 (3) The appeal must be instituted --
3 (a) in accordance with the rules of the Supreme
4 Court; and
5 (b) within the period of 2 days after the day on
6 which the State Administrative Tribunal gives
7 its reasons for the final decision under
8 section 110ZND, unless the Court extends the
9 period for making an application on the ground
10 that there is good reason to allow it to be made
11 outside that time.
12 Note for this subsection:
13 For the purposes of paragraph (b) -- see the State
14 Administrative Tribunal Act 2004 section 77 for the
15 requirement for the State Administrative Tribunal to give its
16 reasons for a final decision.
17 (4) The party instituting the appeal must notify the
18 executive officer about the institution of the appeal, but
19 the Tribunal is not a party to the appeal and nor is any
20 member of the Tribunal.
21 25B. Grounds
22 An appeal from a decision of the State Administrative
23 Tribunal under section 110ZND may only be made on
24 a ground or grounds coming within the following --
25 (a) that the State Administrative Tribunal --
26 (i) made an error of law or fact, or of both
27 law and fact; or
28 (ii) acted without or in excess of
29 jurisdiction; or
30 (iii) did both of the things referred to in
31 subparagraph (i) and (ii);
32 or
page 35
Abortion Legislation Reform Bill 2023
Part 4 Other Acts amended
Division 5 Guardianship and Administration Act 1990 amended
s. 33
1 (b) that there is some other reason that is sufficient
2 to justify a review of the decision.
3 25C. Status of State Administrative Tribunal's decision
4 pending disposal of appeal
5 Where an appeal from a decision of the State
6 Administrative Tribunal under section 110ZND is
7 instituted under section 25A, the operation of the
8 decision is stayed pending the disposal of the appeal.
9
10 33. Part 3 Division 3 Subdivision 4 heading inserted
11 Before section 26 insert:
12
13 Subdivision 4 -- General provisions about appeals
14
15 34. Section 26 amended
16 (1) In section 26 delete "Except where section 25 applies, the
17 appellant shall" and insert:
18
19 (1) The appellant must
20
21 (2) At the end of section 26 insert:
22
23 (2) The appeal may be determined if, in the opinion of the
24 Court, sufficient notice of the appeal is given to each
25 person who ought to be notified of the appeal.
26 (3) This section does not apply if section 25 applies.
27
page 36
Abortion Legislation Reform Bill 2023
Other Acts amended Part 4
Guardianship and Administration Act 1990 amended Division 5
s. 35
1 35. Section 28 amended
2 At the end of section 28 insert:
3
4 Note for this section:
5 See section 25C in relation to the status of a decision of the
6 State Administrative Tribunal under section 110ZND
7 pending disposal of an appeal from the decision.
8
9 36. Section 30 amended
10 Before section 30(1) insert:
11
12 (1A) In this section --
13 determination includes a decision under
14 section 110ZND to consent or refuse consent to the
15 performance of an abortion on a person;
16
17 37. Section 31 amended
18 In section 31 delete "section 21," and insert:
19
20 section 21 or 25B,
21
22 38. Section 34 amended
23 (1) In section 34(3) delete "he" and insert:
24
25 the appellant
26
page 37
Abortion Legislation Reform Bill 2023
Part 4 Other Acts amended
Division 5 Guardianship and Administration Act 1990 amended
s. 39
1 (2) After section 34(3) insert:
2
3 (4) This section does not limit the power of the Court to
4 determine an appeal under section 26(2).
5
6 39. Section 35 amended
7 (1) In section 35(1) delete "he" and insert:
8
9 the appellant
10
11 (2) After section 35(1) insert:
12
13 (1A) Subsection (1) does not apply to an appeal from a
14 decision under section 110ZND to consent or refuse
15 consent to the performance of an abortion on a person.
16
17 40. Section 45 amended
18 (1) In section 45(1) delete "he or they" and insert:
19
20 the person or persons
21
22 (2) In section 45(2):
23 (a) in paragraph (c) delete "he" and insert:
24
25 the represented person
26
page 38
Abortion Legislation Reform Bill 2023
Other Acts amended Part 4
Guardianship and Administration Act 1990 amended Division 5
s. 41
1 (b) in paragraph (d) delete "subsection (4A)," and insert:
2
3 subsections (3A) and (4A),
4
5 (3) After section 45(3) insert:
6
7 (3A) A plenary guardian cannot make a decision in respect
8 of the performance of an abortion on the represented
9 person, including for the purposes of a treatment
10 decision or medical research.
11
12 41. Section 110G amended
13 In section 110G(1) after "45(3)," insert:
14
15 (3A),
16
17 42. Section 110U replaced
18 Delete section 110U and insert:
19
20 110U. Priority of treatment decision in advance health
21 directive
22 The priority to be given to a treatment decision in an
23 advance health directive is determined --
24 (a) in the case of a treatment decision in respect of
25 treatment other than the performance of an
26 abortion on the maker of the directive -- in
27 accordance with section 110ZJ; or
page 39
Abortion Legislation Reform Bill 2023
Part 4 Other Acts amended
Division 5 Guardianship and Administration Act 1990 amended
s. 43
1 (b) in the case of a treatment decision in respect of
2 the performance of an abortion on the maker of
3 the directive -- in accordance with
4 section 110ZLA.
5
6 43. Section 110ZD amended
7 After section 110ZD(6) insert:
8
9 (6A) The person responsible for the patient cannot make a
10 treatment decision in respect of the performance of an
11 abortion on the patient.
12
13 44. Section 110ZH amended
14 In section 110ZH delete the definition of urgent treatment and
15 insert:
16
17 urgent treatment --
18 (a) means treatment (other than the performance of
19 an abortion) urgently needed by a patient --
20 (i) to save the patient's life; or
21 (ii) to prevent serious damage to the
22 patient's health; or
23 (iii) to prevent the patient from suffering or
24 continuing to suffer significant pain or
25 distress;
26 and
27 (b) includes the performance of an abortion on a
28 patient if performing the abortion is urgently
29 needed --
30 (i) to save the patient's life; or
page 40
Abortion Legislation Reform Bill 2023
Other Acts amended Part 4
Guardianship and Administration Act 1990 amended Division 5
s. 45
1 (ii) to prevent serious damage to the
2 patient's health; or
3 (iii) to save another foetus,
4 but
5 (c) does not include:
6 (i) psychiatric treatment, which is
7 treatment as defined in the Mental
8 Health Act 2014 section 4; or
9 (ii) the sterilisation of the patient.
10
11 45. Part 9D Division 2 Subdivision 1 heading inserted
12 At the beginning of Part 9D Division 2 insert:
13
14 Subdivision 1 -- Urgent treatment
15
16 46. Section 110ZI amended
17 (1) Delete section 110ZI(1)(d) and insert:
18
19 (d) it is not practicable for the health professional
20 to obtain --
21 (i) in any case other than the performance
22 of an abortion on the patient -- a
23 treatment decision in respect of the
24 treatment from the patient's guardian or
25 enduring guardian or the person
26 responsible for the patient under
27 section 110ZD, as referred to in
28 section 110ZJ; or
page 41
Abortion Legislation Reform Bill 2023
Part 4 Other Acts amended
Division 5 Guardianship and Administration Act 1990 amended
s. 47
1 (ii) in the case of the performance of an
2 abortion on the patient -- a decision of
3 the State Administrative Tribunal under
4 Division 3 Subdivision 2 in respect of
5 the performance of the abortion, as
6 referred to in section 110ZLA(3).
7
8 (2) Delete section 110ZI(2) and insert:
9
10 (2) The health professional may provide the treatment to
11 the patient --
12 (a) in the case referred to in subsection (1)(d)(i) --
13 in the absence of a treatment decision in
14 relation to the patient from the patient's
15 guardian or enduring guardian or the person
16 responsible for the patient; or
17 (b) in the case referred to in subsection (1)(d)(ii) --
18 in the absence of a decision of the State
19 Administrative Tribunal under Division 3
20 Subdivision 2.
21
22 47. Part 9D Division 2 Subdivision 2 heading inserted
23 After section 110ZIA insert:
24
25 Subdivision 2 -- Other treatment
26
page 42
Abortion Legislation Reform Bill 2023
Other Acts amended Part 4
Guardianship and Administration Act 1990 amended Division 5
s. 48
1 48. Section 110ZIB inserted
2 Before section 110ZJ insert:
3
4 110ZIB. Application of Subdivision
5 This Subdivision does not apply to the performance of
6 an abortion on a patient.
7
8 49. Section 110ZJ amended
9 In section 110ZJ(1) delete "sections 110ZI and 110ZIA," and
10 insert:
11
12 Subdivision 1 and section 110ZIB,
13
14 50. Part 9D Division 2 Subdivision 3 inserted
15 At the end of Part 9D Division 2 insert:
16
17 Subdivision 3 -- Performance of abortion
18 110ZLA. Treatment decisions in relation to
19 performance of abortion
20 (1) Subject to Subdivision 1, this section applies if it is
21 proposed to perform an abortion on a person who --
22 (a) has reached 18 years of age; and
23 (b) is unable to make reasonable judgments in
24 respect of whether or not the abortion should be
25 performed on them.
page 43
Abortion Legislation Reform Bill 2023
Part 4 Other Acts amended
Division 5 Guardianship and Administration Act 1990 amended
s. 50
1 (2) If the person has made an advance health directive
2 containing a treatment decision in respect of the
3 performance of the abortion on the person, whether or
4 not the abortion is performed on the person must be
5 decided in accordance with the treatment decision.
6 (3) If subsection (2) does not apply, whether or not the
7 abortion is performed on the person must be decided by
8 the State Administrative Tribunal under Division 3
9 Subdivision 2.
10 110ZLB. Performance of abortion without advance
11 health directive or State Administrative Tribunal
12 consent an offence
13 Except where section 110ZLA(2) has effect, a health
14 professional must not perform an abortion on a person
15 referred to in section 110ZLA(1) unless --
16 (a) the State Administrative Tribunal has, under
17 section 110ZND, consented to the performance
18 of the abortion on the person; and
19 (b) no appeal from the decision to consent is
20 instituted within the period provided under
21 section 25A(3)(b) or, if an appeal is instituted,
22 the appeal is finally disposed of, or is
23 discontinued or dismissed (and is not reinstated
24 or capable of reinstatement); and
25 (c) the abortion is performed in accordance with
26 any condition imposed by the State
27 Administrative Tribunal under
28 section 110ZND.
29 Penalty for this section: imprisonment for 2 years and a
30 fine of $4 000.
page 44
Abortion Legislation Reform Bill 2023
Other Acts amended Part 4
Guardianship and Administration Act 1990 amended Division 5
s. 50
1 110ZLC. Effect of State Administrative Tribunal
2 consent
3 A decision of the State Administrative Tribunal under
4 Division 3 Subdivision 2 in relation to the performance
5 of an abortion on a person referred to in
6 section 110ZLA(1) has effect as if --
7 (a) it were a treatment decision made by the person
8 in respect of the performance of the abortion on
9 the person; and
10 (b) the person were of full legal capacity.
11 110ZLD. Reliance by health professional on
12 treatment decisions in respect of performance of
13 abortion
14 (1) In this section --
15 abortion treatment decision, in relation to a person
16 referred to in section 110ZLA(1)(a), means --
17 (a) a treatment decision in respect of the
18 performance of an abortion on the person,
19 contained in an advance health directive made
20 by the person; or
21 (b) a decision of the State Administrative Tribunal
22 under Division 3 Subdivision 2 in respect of the
23 person;
24 take abortion action means to perform, or not to
25 perform, an abortion on a person referred to in
26 section 110ZLA(1)(a).
27 (2) Subsection (3) applies if a health professional --
28 (a) takes abortion action --
29 (i) reasonably believing that the person is
30 unable to make reasonable judgments in
31 respect of the abortion action; and
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s. 50
1 (ii) relying in good faith on what is
2 purportedly an abortion treatment
3 decision in respect of the person;
4 or
5 (b) takes abortion action --
6 (i) in circumstances where it is reasonable
7 for the health professional to rely on
8 some other health professional having
9 ascertained whether the taking of the
10 abortion action is in accordance with an
11 abortion treatment decision in respect of
12 the person; and
13 (ii) reasonably assuming that some other
14 health professional has ascertained that
15 the taking of the abortion action is in
16 accordance with an abortion treatment
17 decision in respect of the person.
18 (3) The health professional is taken for all purposes to take
19 the abortion action in accordance with a treatment
20 decision that has effect as if --
21 (a) it had been made by the person; and
22 (b) the person were of full legal capacity.
23 (4) Without limiting subsection (3), a health professional
24 who takes abortion action as referred to in
25 subsection (2) does not commit an offence under
26 section 110ZLB.
27 (5) For subsection (2)(a)(ii), a health professional is taken
28 to have relied in good faith on what was purportedly an
29 abortion treatment decision if, after considering
30 whether or not to rely on it, the health professional
31 acted honestly in relying on it.
32 (6) For the purpose of determining under
33 subsection (2)(b)(ii) whether the health professional's
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Guardianship and Administration Act 1990 amended Division 5
s. 51
1 assumption was reasonable, the following matters must
2 be taken into account --
3 (a) whether the health professional sighted any
4 written evidence that some other health
5 professional had ascertained that the taking of
6 the abortion action was in accordance with the
7 abortion treatment decision;
8 (b) anything else relevant to the determination.
9
10 51. Part 9D Division 3 Subdivision 1 heading inserted
11 At the beginning of Part 9D Division 3 insert:
12
13 Subdivision 1 -- Declarations for purposes of s. 110ZJ
14
15 52. Section 110ZM amended
16 In section 110ZM delete "Division." and insert:
17
18 Subdivision.
19
20 53. Part 9D Division 3 Subdivision 2 inserted
21 At the end of Part 9D Division 3 insert:
22
23 Subdivision 2 -- Decisions for purposes of s. 110ZLA
24 110ZNA. Only Full Tribunal to act under this
25 Subdivision
26 The functions of the State Administrative Tribunal
27 under this Subdivision may only be performed by a
28 Full Tribunal.
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Division 5 Guardianship and Administration Act 1990 amended
s. 53
1 110ZNB. Who may apply for decision under this
2 Subdivision
3 (1) The following persons may apply to the State
4 Administrative Tribunal for a decision under this
5 Subdivision for the purposes of section 110ZLA(3) --
6 (a) the person on whom the abortion is proposed to
7 be performed;
8 (b) if the person has an enduring guardian or a
9 guardian, that guardian;
10 (c) a relative of the person as referred to in
11 subsection (2);
12 (d) the Public Advocate;
13 (e) a person who, in the opinion of the Tribunal,
14 has a proper interest in the matter.
15 (2) For the purposes of subsection (1)(c), a relative of the
16 person is any of the following relatives of the person
17 who have reached 18 years of age --
18 (a) a spouse or de facto partner;
19 (b) a child;
20 (c) a parent;
21 (d) a sibling.
22 110ZNC. Notice of hearing
23 (1) If an application is made under section 110ZNB(1), the
24 State Administrative Tribunal must give the following
25 persons reasonable notice in writing of the hearing of
26 the application --
27 (a) the applicant;
28 (b) the person on whom the abortion is proposed to
29 be performed;
30 (c) the nearest relative, as referred to in
31 subsection (2) (if any), of the person;
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1 (d) if the person has an enduring guardian or
2 guardian, that guardian;
3 (e) the Public Advocate;
4 (f) any other person who in the opinion of the State
5 Administrative Tribunal has a proper interest in
6 the proceedings.
7 (2) For the purposes of subsection (1)(c), the nearest
8 relative of the person is the first in order of priority of
9 the following relatives of the person who have reached
10 18 years of age --
11 (a) a spouse or de facto partner;
12 (b) a child;
13 (c) a parent;
14 (d) a sibling.
15 (3) A notice under subsection (1) must include --
16 (a) particulars of the application and the time and
17 place of the hearing; and
18 (b) in the case of the notice given to the applicant
19 or the person on whom the abortion is proposed
20 to be performed, a summary of --
21 (i) the provisions of section 16 and
22 Schedule 1 clause 13, and the State
23 Administrative Tribunal Act 2004
24 sections 39, 87 and 88, as they affect
25 that person; and
26 (ii) the functions of the State Administrative
27 Tribunal under this Subdivision.
28 (4) The State Administrative Tribunal is not required to
29 give notice to a person referred to in subsection (1) if,
30 after reasonable enquiry, the whereabouts of the person
31 cannot be ascertained.
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s. 53
1 (5) If, by reason of circumstances of urgency, the State
2 Administrative Tribunal considers it necessary to do
3 so, the Tribunal may hear an application made under
4 section 110ZNB(1) without giving notice to the
5 persons referred to in subsection (1)(c), (d) and (f).
6 110ZND. State Administrative Tribunal consent to
7 performance of abortion
8 (1) On hearing an application under section 110ZNB(1),
9 the State Administrative Tribunal may, by order in
10 writing, consent to performance of the abortion on the
11 person if the Tribunal is satisfied that --
12 (a) the person has reached 18 years of age; and
13 (b) the person is unable to make reasonable
14 judgments in respect of whether or not the
15 abortion should be performed on them; and
16 (c) the person has not made an advance health
17 directive containing a treatment decision that is
18 inconsistent with the performance of the
19 abortion on the person; and
20 (d) the performance of the abortion on the person is
21 in the best interests of the person.
22 (2) Without limiting subsection (1)(d), in deciding whether
23 the performance of the abortion on the person is in the
24 best interests of the person, the Tribunal must take into
25 account --
26 (a) whether the person is likely within the
27 foreseeable future to regain the ability to make
28 reasonable judgments in respect of whether or
29 not the abortion should be performed on them;
30 and
31 (b) any wishes of the person so far as they can be
32 ascertained.
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1 (3) The consent of the State Administrative Tribunal under
2 this section may be given subject to compliance with
3 any condition that the Tribunal considers appropriate.
4
5 54. Section 110ZT amended
6 (1) In section 110ZT(2):
7 (a) in paragraph (b) delete "candidate." and insert:
8
9 candidate; or
10
11 (b) after paragraph (b) insert:
12
13 (c) the performance of an abortion on the
14 candidate.
15
16 (2) After section 110ZT(3) insert:
17
18 (4) A person must not, for the purposes of medical
19 research, perform or assist in the performance of an
20 abortion on a research candidate.
21 Penalty for this subsection: imprisonment for 2 years or
22 a fine of $10 000.
23
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Abortion Legislation Reform Bill 2023
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Division 6 Health (Miscellaneous Provisions) Act 1911 amended
s. 55
1 Division 6 -- Health (Miscellaneous Provisions) Act 1911
2 amended
3 55. Act amended
4 This Division amends the Health (Miscellaneous Provisions)
5 Act 1911.
6 56. Section 331 amended
7 (1) In section 331 insert in alphabetical order:
8
9 birth has the meaning given in the Births, Deaths and
10 Marriages Registration Act 1998 section 4;
11 neonatal death has the meaning given in the Births,
12 Deaths and Marriages Registration Act 1998 section 4;
13 perform an abortion has the meaning given in the
14 Public Health Act 2016 section 202MB;
15 still-birth has the meaning given in the Births, Deaths
16 and Marriages Registration Act 1998 section 4.
17
18 (2) In section 331 in the definition of school dental therapist delete
19 "profession." and insert:
20
21 profession;
22
23 57. Section 332 inserted
24 After section 331 insert:
25
26 332. Application of Part to abortion
27 (1) Regulations made under section 333 cannot make
28 provision in relation to --
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s. 58
1 (a) the performance of abortions; or
2 (b) any matter related to or connected with the
3 performance of abortions (including births,
4 still-births or neonatal deaths that result from
5 the performance of abortions).
6 (2) Despite anything in sections 335 and 336A, no person
7 is required under those provisions to give any report or
8 notification to the Chief Health Officer or to any other
9 person in relation to --
10 (a) the performance of an abortion on a person; or
11 (b) any birth, still-birth or neonatal death that
12 results from the performance of the abortion.
13 (3) If a person dies as a result of the performance of an
14 abortion on the person, or as a result of any
15 complications arising from or following upon the
16 performance of an abortion on the person, the death is
17 to be treated as the result of pregnancy for the purposes
18 of section 336 and that section applies accordingly.
19 (4) This section does not affect the obligations of a person
20 under the Births, Deaths and Marriages Registration
21 Act 1998.
22
23 58. Section 334 deleted
24 Delete section 334.
25 59. Section 335 amended
26 (1) In section 335(1) delete "stillbirth, or abortion." and insert:
27
28 stillbirth.
29
30 (2) Delete section 335(4).
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Division 6 Health (Miscellaneous Provisions) Act 1911 amended
s. 59
1 (3) In section 335(5):
2 (a) in paragraph (a) delete "birth, stillbirth or abortion
3 (other than an abortion to which paragraph (d) applies),"
4 and insert:
5
6 birth or stillbirth,
7
8 (b) delete paragraphs (d) and (e).
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