Acts Amendment (Abortion) Act 1998 (WA)

WESTERN AUSTRALIA

ACTS AMENDMENT (ABORTION)

ACT 1998

No. 15 of 1998

AN ACT to amend The Criminal Code to remove offences related to procuring abortion, to amend the Health Act 1911 to regulate the performance of abortion, as a consequence, to amend the Evidence Act 1906 and the Children’s Court of Western Australia Act 1988 and for related purposes.

[Assented to 26 May 1998]

The Parliament of Western Australia enacts as follows:

No. 15] Acts Amendment (Abortion) Act 1998

s. 1

PART 1 — PRELIMINARY

Short title

1. This Act may be cited as the Acts Amendment (Abortion)

Act 1998.

Commencement

2. This Act comes into operation on the day on which it

receives the Royal Assent.

Acts Amendment (Abortion) Act 1998 [No. 15

s. 3

PART 2 — THE CRIMINAL CODE & EVIDENCE ACT 1906

The Code

3.   In this Act ‘‘the Code’’ means The Criminal Code.

[ Reprinted as at 21 April 1997 as the Schedule to the Criminal Code Act 1913 appearing in Appendix B to the Criminal Code Compilation Act 1913.

For subsequent amendments see Act No. 19 of 1997.]

Sections 199, 200 and 201 repealed and section 199 substituted

4. Sections 199, 200 and 201 of the Code are repealed and the following section is substituted —

‘‘

Abortion

199. (1)	It is unlawful to perform an abortion
unless —

(a)	theabortionisperformedbyamedical practitioner in good faith and with reasonable care and skill; and
(b)	the performance of the abortion is justified under section 334 of the Health Act 1911.

(2) A person who unlawfully performs an abortion

is guilty of an offence.

Penalty: $50 000.

Subject to section 259, if a person who is not a medical practitioner performs an abortion that person is guilty of a crime and is liable to imprisonment for 5 years.

(3)

No. 15] Acts Amendment (Abortion) Act 1998

s. 5

(4) In this section —

‘‘medical practitioner’’ has the same meaning as it has in the Health Act 1911.

A reference in this section to performing an abortion includes a reference to —

(5)

(a)	attempting to perform an abortion; and
(b)	doinganyactwithintenttoprocurean abortion,

whether or not the woman concerned is pregnant.

’’.

Section 259 repealed and a section substituted

5. Section 259 of the Code is repealed and the following section is substituted —

‘‘

Surgical and medical treatment

259. A person is not criminally responsible for administering, in good faith and with reasonable care and skill, surgical or medical treatment —

(a)	toanotherpersonforthatotherperson’s benefit; or
(b)	to an unborn child for the preservation of the mother’s life,

if the administration of the treatment is reasonable, having regard to the patient’s state at the time and to all the circumstances of the case.

’’.

Acts Amendment (Abortion) Act 1998 [No. 15

s. 6

Evidence Act 1906 amended and saving

6. (1) The Second Schedule to the Evidence Act 1906* is

amended in Part 1 —

(a) in the item commencing ‘‘s. 199’’, by deleting ‘‘Attempt to procure the miscarriage of a woman’’ and substituting the following —

‘‘ Abortion ’’; and

(b) bydeletingtheitemscommencing‘‘s.200’’and‘‘s. 201’’.

(2) In relation to an offence committed before the commencement of this Act, the Evidence Act 1906* applies as if subsection (1) had not been enacted.

[* Reprinted as at 10 September 1996.

For subsequent amendments see 1996 Index to Legislation of Western Australia, Table 1. pp. 76-77, and Act No. 57 of 1997.]

No. 15] Acts Amendment (Abortion) Act 1998

s. 7

PART 3 — HEALTH ACT 1911 & CHILDREN’S COURT OF

WESTERN AUSTRALIA ACT 1988

Health Act 1911 amended

7. (1) After section 333 of the Health Act 1911 the following

section is inserted —

‘‘

Performance of abortions

334. (1) A reference in this section to performing

an abortion includes a reference to —

(a)	attemptingtoperformanabortion; and
(b)	doinganyactwithintenttoprocurean abortion,

whether or not the woman concerned is pregnant.

(2) No person, hospital, health institution, other institution or service is under a duty, whether by contract or by statutory or other legal requirement, to participate in the performance of any abortion.

(3) Subject to subsections (4) and (7), the performance of an abortion is justified for the purposes of section 199 (1) of The Criminal Code if, and only if —

(a)	thewomanconcernedhasgiveninformed consent; or
(b)	thewomanconcernedwillsufferserious personal, family or social consequences if the abortion is not performed; or

Acts Amendment (Abortion) Act 1998 [No. 15

s. 7

(c)	seriousdangertothephysicalormental health of the woman concerned will result if the abortion is not performed; or
(d)	the pregnancy of the woman concerned is causing serious danger to her physical or mental health.

Paragraphs (b), (c) or (d) of subsection (3) do not apply unless the woman has given informed consent or in the case of paragraphs (c) or (d) it is impracticable for her to do so.

(4)

(5)	In this section —
‘‘informed consent’’ means consent freely

given by the woman where —

(a)	amedicalpractitionerhasproperly, appropriately and adequately provided her with counselling about the medical risk of termination of pregnancy and of carrying a pregnancy to term;
(b)	a medical practitioner has offered her the opportunity of referral to appropriate and adequate counselling about matters relating to termination of pregnancy and carrying a pregnancy to term; and
(c)	amedicalpractitionerhasinformed her that appropriate and adequate counselling will be available to her should she wish it upon termination of pregnancy or after carrying the pregnancy to term.

No. 15] Acts Amendment (Abortion) Act 1998

s. 7

(6) A reference in subsection (5) to a medical

practitioner does not include a reference to —

(a)	the medical practitioner who performs the abortion; nor
(b)	any medical practitioner who assists in the performance of the abortion.

If at least 20 weeks of the woman’s pregnancy have been completed when the abortion is performed, the performance of the abortion is not justified unless —

(7)

(a)	2 medical practitioners who are members of a panel of at least 6 medical practitioners appointed by the Minister for the purposes of this section have agreed that the mother, or the unborn child, has a severe medical condition that, in the clinical judgment of those 2 medical practitioners, justifies the procedure; and
(b)	theabortionisperformedinafacility approved by the Minister for the purposes of this section.

(8) For the purposes of this section —

(a) subject to subsection (11), a woman who is a dependant minor shall not be regarded as having given informed consent unless a custodial parent of the woman has been informed that the performance of an abortion is being considered and has been given the opportunity to participate in a counselling process and in consultations between the woman and her medical practitioner as to whether the abortion is to be performed;

Acts Amendment (Abortion) Act 1998 [No. 15

s. 7

(b)	a woman is a dependant minor if she has not reached the age of 16 years and is being supported by a custodial parent or parents; and
(c)	a reference to a parent includes a reference to a legal guardian.

(9) A woman who is a dependant minor may apply to the Children’s Court for an order that a person specified in the application, being a custodial parent of the woman, should not be given the information and opportunity referred to in subsection (8) (a) and the court may, on being satisfied that the application should be granted, make an order in those terms.

(10) An order made under subsection (9) has effect according to its terms and is not liable to be challenged, appealed against, reviewed, quashed or called in question in or by any court.

If the effect of an order under subsection (9) is that no custodial parent of the woman can be given the information and opportunity referred to in subsection (8) (a), subsection (8) does not apply in relation to the woman.

(11)

’’.

(2) Section 335 (5) of the Health Act 1911 is amended —

(a) inparagraph(a)byinsertingafter‘‘abortion’’the following —

‘‘

(other than an abortion to which paragraph

(d) applies)

’’;

and

No. 15] Acts Amendment (Abortion) Act 1998

s. 8

(b) byinsertingafterparagraph(c)thefollowing paragraphs —

‘‘

(d) When a medical practitioner performs an abortion, the medical practitioner shall notify the Executive Director, Public Health of the fact in the prescribed form within 14 days of the abortion being performed.

( e ) A n o t i f i c a t i o n und e r

paragraph (d) must not contain any particulars from which it may be possible to ascertain the identity of the patient.

’’.

Review of provisions relating to abortion

8. (1) The Minister administering the Health Act 1911 is to carry out a review of the operation and effectiveness of the provisions of the Health Act 1911 and The Criminal Code related to abortion as soon as is practicable after the expiration of 3 years from the commencement of this Act.

The Minister is to prepare a report based on the review made under subsection (1) and cause the report to be laid before each House of Parliament within 4 years after the commencement of this Act.

(2)

Children’s Court of Western Australia Act 1988 amended

9. Section 20 of the Children’s Court of Western Australia Act 1988 is amended —

(a) by deleting ‘‘and’’ after paragraph (b); and

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s. 9

(b) after paragraph (c) by inserting the following —

‘‘

; and

(d) under section 334 of the Health Act 1911.

’’.

By Authority: JOHN A. STRIJK, Government Printer