Legislative Assembly for the ACT: 2002 Week 1 Hansard (12 December) . . Page.. 106..
MR BERRY (continuing):
of ACT women having access to abortion and, at the same time, the existence of criminal sanctions. As you all know, I feel very strongly about this issue and it is my commitment to law reform in this area which has led me to campaign on this issue over many years and to my actions today.
It is a woman's right to choose whether she has an abortion and most in the community accept this position. It is worthwhile to look at how we got to this position. The Crimes Act 1900, which I seek to amend with this bill, has three sections which make abortion illegal-sections 44, 45 and 46. They provide a penalty of up to 10 years in prison for a woman who procures her own abortion, for someone such as a doctor who performs an abortion, or for someone such as a pharmacist who provides drugs which may be used to perform an abortion.
Our Crimes Act is modelled on the New South Wales Crimes Act, which was in turn based on the United Kingdom's Offences Against the Person Act of 1861. Let us now consider how things were in 1861 when this law was put in place in the United Kingdom. Women in those days were considered the property of their father until that possession was transferred to their husband. Continuing the family line-that is, bearing children-was considered essential. Women did not work outside the home and women were not allowed to own property until 1870. Women could not become members of parliament in the United Kingdom until 1919. They did not get the vote until 1928. In Australia, we were much more progressive-women were granted the vote in 1902-but the Crimes Act was passed in 1900.
Things have changed since then and the attitudes that prevailed in 1861 are, thankfully, a thing of the past. The way the changes in community attitudes have been recognised is through the courts. Rulings by judges have meant that the Crimes Act 1900 has not been enforced. We cannot ignore, however, that court rulings can and do get changed by different decisions. This was demonstrated starkly by the 1994 Newman ruling in New South Wales. In that decision, Judge Newman reaffirmed that, under the Crimes Act, abortion is illegal. Alarm bells started to ring all round the country. We had relied on the Menhennitt and Levine rulings for over 20 years, but a judge in a higher court reminded us that the illegality was still there.
Equally, we cannot ignore our responsibility as legislators. Ineffective and outdated law is bad law and should be ditched. It is not appropriate to allow laws to be breached. If we believe that they are no longer to be enforced, we must do our duty and change those laws. It is a sign of weaknesses inherent in the legislation where the harshness of the law has been ameliorated by the judiciary to reflect community standards. We are, after all, the law makers.
In the specific case I have raised today, the penalties under the Crimes Act are for up to 10 years jail. Quite simply, I do not believe that the community would countenance laws which could result in a woman being sent to jail for 10 years because she had an abortion, nor would they accept that her doctor should suffer the same fate for performing that abortion. Surely a woman faced with the difficulty of such a decision should be granted our support, not threatened with a jail sentence.