Reproductive Healthcare Reform Bill 2019

Legislative Council - 20 August 2019

The Hon. JOHN GRAHAM (20:19): In my short time in this Parliament I have been present for three debates on abortion law—a debate on safe access zones moved by my colleague the Hon. Penny Sharpe, a debate on Zoe's law and one previous proposal to remove abortion from the Crimes Act. That last bill was defeated in this House. In my speech on that bill I described its likely defeat as the beginning, not the end, of this debate. This House choosing to act, to reassert abortion as a matter of criminal law, produced its own reaction. That 14 to 25 vote was a beginning to the debate, not an end. It should be no surprise to anyone here that this debate is occurring now. That is especially true after Queensland voted to remove abortion from the Criminal Code in October last year. Until that law changed, abortion was a crime for half the women in Australia. That decision of the Queensland Parliament left New South Wales the final State to reform its laws governing abortion.Perhaps it is not surprising that we have been the last State to move on this issue.

New South Wales is more religious than any of those other States, with 65.3 per cent of the electorate in the 2016 census nominating a religion, compared to the national figure of 60 per cent—and not just more religious, but also more Catholic, with 24 per cent of the New South Wales population identifying themselves in that way. Those are some of the reasons why I have some sympathy for the arguments that are being put by those on both sides of the aisle who felt that the original plan to pass the bill through both Houses in a single week was inappropriate. It was a rushed and disrespectful proposal. In New South Wales—and this is true of both sides of politics—there has been a tendency to move issues at top speed through the Parliament. In this instance that was unhelpful. Still, the vast majority of our citizens believe that abortion should not be a crime. I support the Reproductive Health Care Reform Bill.

There are four principles that weigh most heavily with me in casting my vote. Firstly, I believe these are decisions for the individual and not the State. While I respect the strongly opposing views on both sides, I believe that the best way to reconcile them on this issue is for each individual to do so. Secondly, there is a significant gap between the words of this law and the lived reality of New South Wales citizens. It is hard to think of a New South Wales law where that gap is so large. That disparity diminishes each other sanction set down in New South Wales law.

Thirdly, there is great uncertainty about the current state of the law. That was demonstrated in a New South Wales appellate court in 1995. In that case, first, Justice Kirby determined that neither the woman concerned nor her doctors would have acted unlawfully. Secondly, Justice Priestley determined that the doctor would have acted unlawfully, but the woman would not have. Thirdly, Justice Meagher determined that both the woman and the doctor would have acted unlawfully. If three esteemed justices, faced with a single set of facts, come to three different conclusions, what hope does a young women living in rural New South Wales have, armed with few financial resources and medical advice limited by criminal sanction?

Which leads to the fourth principle, which is probably of most concern to me; that is, equity of access to services, information and financial resources. This law applies unequally to people in rural areas and it applies unequally to poor and working class people. Let us describe briefly how that is working on the ground in rural New South Wales, say in a place like Albury. This Parliament passed a law to implement safe access zones, which would have acted to protect women seeking an abortion at a clinic on Englehardt Street, Albury. This was the clinic where the Helpers of God's Precious Infants had mounted a long-term vigil. It was a clinic with a catchment of 300,000 people. Despite those new laws, that clinic closed. This is now the situation in Albury. Reproductive health services are now provided from across the border. Since Gateway Health Wodonga began coordinating surgical abortion, 60 per cent of patients reportedly come from the Murrumbidgee catchment in New South Wales. Gateway Health Wodonga Medical Director Catherine Orr said:

When you break the percentage down and take out Albury and Lavington, 38 per cent of women presenting for surgical abortion come from wider NSW.

The furthest a woman has travelled is a 1200-kilometre round trip, and we have women coming from Griffith, Cootamundra and Wagga.

This is the way Tanya Plibersek chose to describe the situation nationally:

The reality of the situation is that if you are a middle class woman living in a capital city, maybe you will agonise over the decision, there may be barriers and stigma around you getting an abortion, but you probably be able to get one if you need one.

If you live in a rural or remote area, if you are experiencing poverty, if you do not speak much English, or if you are young—it's going to be a whole lot harder, if it is possible at all.

What are our goals with the bill? Firstly, to diminish those barriers and that stigma. Secondly, for the young, the poor, the rural or the non-English speaking—equality. An equal ability to access reproductive healthcare when it is required. Thirdly, this: a gentle recognition that human relationships are complicated. Contraceptives fail. That is reportedly the cause of 70 per cent of unwanted pregnancies. More importantly, humans fail. We are not always our best, most rational selves all the time. Few of us would meet that benchmark. We want to diminish stigma, create equal access and a gentle recognition of human failing.Passing the bill will not guarantee these things, but it is certain that if we chose not to pass the bill, they will not happen.

This law was created in the United Kingdom by men. It passed into law in this State, before women in New South Wales had the vote. It was a law drafted by men, voted on by male parliamentarians, themselves elected exclusively by men. Yet its greatest impact was on women. Until these laws change, men and women cannot be equal. Despite all the progress that we have made towards that goal. That was the argument made by Betty Friedan in January 1969 in Chicago, Illinois, addressing the first US national conference on abortion law, when she said:

Abortion repeal is not a question of political expediency. It is a part of something greater … women's voices are finally being heard aloud—

The PRESIDENT: Order! I would be grateful if the lady in the public gallery would stop clapping and making hand gestures. This is her final warning.

The Hon. JOHN GRAHAM: She continued:

Women's voices are finally being heard aloud saying it the way it is about the question of abortion, both in its most basic sense of morality and its new political sense as part of the unfinished revolution of sexual equality.

… so we here, in changing the very terms of the debate on abortion to asset woman's right to choose and to define the terms of our lives ourselves—move women further to full human dignity.

These laws are a barrier to the full human dignity of women in New South Wales. There are other barriers too—women are paid less and killed by their own partners, too often for us to say otherwise. We can say this: until we change this law, women and men in New South Wales cannot be equal. Between 1861 and 1971—the time of the Levine ruling in New South Wales—these laws cost lives. Because of the stigma caused by criminalisation we will never know how many.

In that period of 110 years these laws were responsible for the loss of hundreds—probably thousands—of lives. Since that court decision in 1971 the gap between what is written in the law and the practice on the ground has diverged significantly. Still, the presence of these laws in the Crimes Act has meant that reproductive services have been more expensive, more private and more difficult to access in rural areas than they should be. They have been a barrier to frank discussion and to open medical advice. At the time when the courts changed the interpretation of the law, feminist activism was driven by a sense that society was changing. Those early judicial decisions in Victoria, New South Wales and then Queensland must have also been influenced by that sense of social change. Since that time, think about how much further equality between women and men has come.

As one example, Gideon Haigh observes that on 22 May 1969, the day of that first Australian legal decision creating the modern court framework for abortion—that of Justice Menhennitt in Victoria—the decision itself was not reported. However, other topical feminist debates did feature in the paper that day in an article under the headline "Are ladies in trousers respectable?" We have come a long way, but women and men cannot be equal in New South Wales until this law is changed. I acknowledge the long march of this issue through the Labor Party. I acknowledge the many women activists who have driven it over that time. I encourage people to read an excellent account of that journey by Meredith Burgmann in a chapter of the recently published bookChoice Words. In fact, I encourage people to read the book. Meredith charts the early political activism in Sydney of abortion law reformers marching in 1969. She describes it:

In a flurry of blue overalls, severe haircuts and excellent earrings (we never opposed interesting jewellery) …

Abortion rights were regarded as a key issue by Labor's large and active women's conference. This was no doubt one of the reasons the party's head office abolished the conference in 1986. That decision, that abolition, contributed to delaying this law reform and that is a shame. One flashpoint for such party tension was a women's rights rally in Sydney. Labor women activists planned to march under the Labor Women's Conference banner. The party hierarchy took a dim view of this and made it known that any women taking part would be expelled. This news reached the press, heightening tensions but Labor women activists marched. They did so with their heads covered with paper bags, marching behind a banner titled "36 Faceless Women", a cheeky reference to the 36 faceless men charge that had been levelled in the Whitlam era. Needless to say, no-one was expelled.

I want to recognise some of those State Labor activists who have campaigned for this change, especially my colleague Penny Sharpe and Labor's co-sponsors of this bill, Trish Doyle, Jo Haylen and Jenny Aitchison, and many others, including Meredith Burgmann, Helen Westwood, Ann Symonds, Jan Burnswoods, Pam Allan, Sandra Nori, Lynda Voltz, Verity Firth and Carmel Tebbutt. They are now ably followed by Claire Pullen, Emily Mayo, Rosie Ryan, Charlotte Kennedy-Cox, Chloe Smith, Georgie Slater, Lizzie Butterworth and many more. I raise these things simply to say that this issue has had a long march through Labor.

Crucial to managing the debate has been the party's 1984 national conference decision to affirm a conscience vote on abortion. I support the broad Labor Party that decision has created, filled with people of genuine but sometimes conflicting beliefs. If the last failed bill reignited this debate, then this bill will not end it. The debate will continue. The citizens of New South Wales will continue to struggle with decisions about abortion. Those discussions will be had in bedrooms and lounge rooms, around kitchen tables and in doctors' surgeries around the State, rather than occurring here in the Parliament, and that is as it should be, in my view.

Abortion will still be a difficult choice. It will still be confronting. Above all, it will still sometimes be deeply sad. Women in New South Wales, and those who love them, will be able to make these choices according to their own faith, or creed or set of beliefs; their own sense of morality. They will make those decisions free of the threat of the criminal law, based on medical advice free of the threat of the criminal law. The passing of this bill will not end this issue. The debate and the discussion will continue where it should occur—in the community, not in this Chamber, not in our courts and, thankfully, not in our jails. Passing this bill will not by itself achieve equality for women and men in New South Wales. There is still much to do. However, failing to pass this bill would guarantee that women and men in New South Wales do not achieve equality. For that reason I commend the bill to the House.