Country Profile: Australia

Penalties deconstructed

Penalties only for unlawful/illegal abortions

Penalties

The Health Act 1993 states that a person commits an offence if the person supplies or administers an abortifacient to another person; and the abortifacient is supplied or administered by the person for the purpose of ending a pregnancy; and the person is not a doctor. Pharmacists and persons assisting them may supply an abortifacient in accordance with a prescription. Furthermore, a person commits an offence if the person carries out a surgical abortion and is not a doctor and/or the abortion is carried out somewhere other than in an approved medical facility.

Penalties deconstructed

Penalties only for unlawful/illegal abortions

Penalties

New South Wales Crimes Act - Division 12 Attempts to procure abortion.

82 Administering drugs etc to herself by woman with child

whosoever, being a woman with child,

unlawfully administers to herself any drug or noxious thing, or unlawfully uses any instrument or other means,

with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years.

83 Administering drugs etc to woman with intent whosoever:

unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing, or

unlawfully uses any instrument or other means,

with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years.

84 Procuring drugs etc

whosoever unlawfully supplies or procures any drug or noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used with intent to procure the miscarriage of any woman, whether with child or not, shall be liable to imprisonment for five years.

Penalties

New South Wales Crimes Act - Division 12 Attempts to procure abortion.

82 Administering drugs etc to herself by woman with child

whosoever, being a woman with child,

unlawfully administers to herself any drug or noxious thing, or unlawfully uses any instrument or other means,

with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years.

83 Administering drugs etc to woman with intent whosoever:

unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing, or

unlawfully uses any instrument or other means,

with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years.

84 Procuring drugs etc

whosoever unlawfully supplies or procures any drug or noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used with intent to procure the miscarriage of any woman, whether with child or not, shall be liable to imprisonment for five years.

Penalties

None found

Penalties deconstructed

Legal grounds specified; penalties for all other abortions

Penalties

Northern Territory Criminal Code Act - 208A Definition:

In this Division:
"drug" includes a poison.

208B Procuring abortion:

(1) A person is guilty of an offence if: (a) the person: (i) administers a drug to a woman or causes a drug to be taken by a woman; or

(ii) uses an instrument or other thing on a woman; and (b) the person intends by that conduct to procure the woman's miscarriage.

Maximum penalty: Imprisonment for 7 years.
(2) It is immaterial that the woman is not pregnant.

Note for section 208B:

Under section 11 of the Medical Services Act, in certain circumstances it is lawful for a medical practitioner to give medical treatment with the intention of terminating a woman's pregnancy.

208C Supplying things for procuring abortion:

(1) A person is guilty of an offence if the person:

(a) supplies to, or obtains for, a woman a drug, instrument or other thing; and (b) knows the drug, instrument or other thing is intended to be used with the intention of procuring the woman's miscarriage.

Maximum penalty: Imprisonment for 7 years.
(2) It is immaterial that the woman is not pregnant.

Note for section 208C

Under section 11 of the Medical Services Act, in certain circumstances it is lawful for a medical practitioner to give medical treatment with the intention of terminating a woman's pregnancy.

Penalties

Northern Territory Criminal Code Act - 208A Definition:

In this Division:
"drug" includes a poison.

208B Procuring abortion:

(1) A person is guilty of an offence if: (a) the person: (i) administers a drug to a woman or causes a drug to be taken by a woman; or

(ii) uses an instrument or other thing on a woman; and (b) the person intends by that conduct to procure the woman's miscarriage.

Maximum penalty: Imprisonment for 7 years.
(2) It is immaterial that the woman is not pregnant.

Note for section 208B:

Under section 11 of the Medical Services Act, in certain circumstances it is lawful for a medical practitioner to give medical treatment with the intention of terminating a woman's pregnancy.

208C Supplying things for procuring abortion:

(1) A person is guilty of an offence if the person:

(a) supplies to, or obtains for, a woman a drug, instrument or other thing; and (b) knows the drug, instrument or other thing is intended to be used with the intention of procuring the woman's miscarriage.

Maximum penalty: Imprisonment for 7 years.
(2) It is immaterial that the woman is not pregnant.

Note for section 208C

Under section 11 of the Medical Services Act, in certain circumstances it is lawful for a medical practitioner to give medical treatment with the intention of terminating a woman's pregnancy.

Penalties

None found

Penalties deconstructed

Penalties only for unlawful/illegal abortions

Penalties

Queensland Criminal Code - 319A Termination of pregnancy performed by unqualified person

(1) An unqualified person who performs a termination on a woman commits a crime.

319

319A

Maximum penalty—7 years imprisonment.

2. (2) An unqualified person who assists in the performance of a termination on a woman commits a crime.

Maximum penalty—7 years imprisonment.

3. (3) A reference in subsection (2) to assisting in the performance of a termination includes—

1. (a) supplying, or procuring the supply of, a termination drug for use in a termination; and

2. (b) administering a termination drug.

Note— The Termination of Pregnancy Act 2018, section 10 provides that a woman who consents to, assists in, or performs a termination on herself does not commit an offence.

Any person who, with intent to procure the miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a crime, and is liable to imprisonment for 14 years.

225 The like by women with child:

Any woman who, with intent to procure her own miscarriage, whether she is or is not with child, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her, is guilty of a crime, and is liable to imprisonment for 7 years.

226 Supplying drugs or instruments to procure abortion:

Any person who unlawfully supplies to or procures for any person anything whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman, whether she is or is not with child, is guilty of a misdemeanor, and is liable to imprisonment for 3 years.

Penalties

Queensland Criminal Code - 2Termination of pregnancy performed by unqualified person

(1) An unqualified person who performs a termination on a woman commits a crime.

319

319A

Maximum penalty—7 years imprisonment.

2. (2) An unqualified person who assists in the performance of a termination on a woman commits a crime.

Maximum penalty—7 years imprisonment.

3. (3) A reference in subsection (2) to assisting in the performance of a termination includes—

1. (a) supplying, or procuring the supply of, a termination drug for use in a termination; and

2. (b) administering a termination drug.

Note— The Termination of Pregnancy Act 2018, section 10 provides that a woman who consents to, assists in, or performs a termination on herself does not commit an offence.

Penalties

None found

Penalties deconstructed

Penalties only for unlawful/illegal abortions

Penalties

South Australia Criminal Law - Division 17—Abortion 81—Attempts to procure abortion:

(1) Any woman who, being with child, with intent to procure her own miscarriage, unlawfully administers to herself any poison or other noxious thing, or unlawfully uses any instrument or other means whatsoever with the like intent, shall be guilty of an offence and liable to be imprisoned for life.

(2) Any person who, with intent to procure the miscarriage of any woman, whether she is or is not with child, unlawfully administers to her, or causes to be taken by her, any poison or other noxious thing, or unlawfully uses any instrument or other means whatsoever with the like intent, shall be guilty of an offence and liable to be imprisoned for life.

82—Procuring drugs etc to cause abortion:

Any person who unlawfully supplies or procures any poison or other noxious thing, or any instrument or thing whatsoever, knowing that it is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she is or is not with child, shall be guilty of an offence and liable to be imprisoned for a term not exceeding three years.

82A—Medical termination of pregnancy: (1)

Notwithstanding anything contained in section 81 or 82, but subject to this section, a person shall not be guilty of an offence under either of those sections— (a) if the pregnancy of a woman is terminated by a legally qualified medical practitioner in a case where he and one other legally qualified medical practitioner are of the opinion, formed in good faith after both have personally examined the woman— (i) that the continuance of the pregnancy would involve greater risk to the life of the pregnant woman, or greater risk of injury to the physical or mental health of the pregnant woman, than if the pregnancy were terminated; or (ii) that there is a substantial risk that, if the pregnancy were not terminated and the child were born to the pregnant woman, the child would suffer from such physical or mental abnormalities as to be seriously handicapped, and where the treatment for the termination of the pregnancy is carried out in a hospital, or a hospital of a class, declared by regulation to be a prescribed hospital, or a hospital of a prescribed class, for the purposes of this section; or (b) if the pregnancy of a woman is terminated by a legally qualified medical practitioner in a case where he is of the opinion, formed in good faith, that the termination is immediately necessary to save the life, or to prevent grave injury to the physical or mental health, of the pregnant woman.

Subsection (1)(a) does not refer or apply to any woman who has not resided in South Australia for a period of at least two months before the termination of her pregnancy. (3) In determining whether the continuance of a pregnancy would involve such risk of injury to the physical or mental health of a pregnant woman as is mentioned in subsection (1)(a)(i), account may be taken of the pregnant woman's actual or reasonably foreseeable environment.

(4) The Governor may make regulations— (a) for requiring any such opinion as is referred to in subsection (1) to be certified by the legally qualified medical practitioners or practitioner concerned in such form and at or within such time as may be prescribed and for requiring the preservation and disposal of any such certificate made for the purposes of this Act; and (b) for requiring any legally qualified medical practitioner who terminates a pregnancy, and the superintendent or manager of the hospital in which the termination is carried out, to give notice of the termination and such other information relating to the termination as may be prescribed to the Director-General of Medical Services; and (c) for prohibiting the disclosure, except to such persons or for such purposes as may be prescribed, of notices or information given pursuant to the regulations; and (d) declaring a particular hospital or a class of hospitals to be a prescribed hospital or a prescribed class of hospitals for the purposes of this section; and (e) for providing for, and prescribing, any penalty, not exceeding two hundred dollars, for any contravention of, or failure to comply with, any regulations. (5) Subject to subsection (6), no person is under a duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this section to which he has a conscientious objection, but in any legal proceedings the burden of proof of conscientious objection rests on the person claiming to rely on it. (6) Nothing in subsection (5) affects any duty to participate in treatment which is necessary to save the life, or to prevent grave injury to the physical or mental health, of a pregnant woman. (7) The provisions of subsection (1) do not apply to, or in relation to, a person who, with intent to destroy the life of a child capable of being born alive, by any willful act causes such a child to die before it has an existence independent of its mother where it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother. (8) For the purposes of subsection (7), evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born alive. (9) For the purposes of sections 81 and 82, anything done with intent to procure the miscarriage of a woman is unlawfully done unless authorised by this section. (10) In this section and in sections 81 and 82— woman means any female person of any age.

Note: This version is not published under the Legislation Revision and Publication Act 2002 [1.4.2015]

Penalties

South Australia Criminal Law - Division 17—Abortion 81—Attempts to procure abortion:

(1) Any woman who, being with child, with intent to procure her own miscarriage, unlawfully administers to herself any poison or other noxious thing, or unlawfully uses any instrument or other means whatsoever with the like intent, shall be guilty of an offence and liable to be imprisoned for life.

(2) Any person who, with intent to procure the miscarriage of any woman, whether she is or is not with child, unlawfully administers to her, or causes to be taken by her, any poison or other noxious thing, or unlawfully uses any instrument or other means whatsoever with the like intent, shall be guilty of an offence and liable to be imprisoned for life.

82—Procuring drugs etc to cause abortion:

Any person who unlawfully supplies or procures any poison or other noxious thing, or any instrument or thing whatsoever, knowing that it is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she is or is not with child, shall be guilty of an offence and liable to be imprisoned for a term not exceeding three years.

82A—Medical termination of pregnancy: (1)

Notwithstanding anything contained in section 81 or 82, but subject to this section, a person shall not be guilty of an offence under either of those sections— (a) if the pregnancy of a woman is terminated by a legally qualified medical practitioner in a case where he and one other legally qualified medical practitioner are of the opinion, formed in good faith after both have personally examined the woman— (i) that the continuance of the pregnancy would involve greater risk to the life of the pregnant woman, or greater risk of injury to the physical or mental health of the pregnant woman, than if the pregnancy were terminated; or (ii) that there is a substantial risk that, if the pregnancy were not terminated and the child were born to the pregnant woman, the child would suffer from such physical or mental abnormalities as to be seriously handicapped, and where the treatment for the termination of the pregnancy is carried out in a hospital, or a hospital of a class, declared by regulation to be a prescribed hospital, or a hospital of a prescribed class, for the purposes of this section; or (b) if the pregnancy of a woman is terminated by a legally qualified medical practitioner in a case where he is of the opinion, formed in good faith, that the termination is immediately necessary to save the life, or to prevent grave injury to the physical or mental health, of the pregnant woman.

Subsection (1)(a) does not refer or apply to any woman who has not resided in South Australia for a period of at least two months before the termination of her pregnancy. (3) In determining whether the continuance of a pregnancy would involve such risk of injury to the physical or mental health of a pregnant woman as is mentioned in subsection (1)(a)(i), account may be taken of the pregnant woman's actual or reasonably foreseeable environment.

(4) The Governor may make regulations— (a) for requiring any such opinion as is referred to in subsection (1) to be certified by the legally qualified medical practitioners or practitioner concerned in such form and at or within such time as may be prescribed and for requiring the preservation and disposal of any such certificate made for the purposes of this Act; and (b) for requiring any legally qualified medical practitioner who terminates a pregnancy, and the superintendent or manager of the hospital in which the termination is carried out, to give notice of the termination and such other information relating to the termination as may be prescribed to the Director-General of Medical Services; and (c) for prohibiting the disclosure, except to such persons or for such purposes as may be prescribed, of notices or information given pursuant to the regulations; and (d) declaring a particular hospital or a class of hospitals to be a prescribed hospital or a prescribed class of hospitals for the purposes of this section; and (e) for providing for, and prescribing, any penalty, not exceeding two hundred dollars, for any contravention of, or failure to comply with, any regulations. (5) Subject to subsection (6), no person is under a duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this section to which he has a conscientious objection, but in any legal proceedings the burden of proof of conscientious objection rests on the person claiming to rely on it. (6) Nothing in subsection (5) affects any duty to participate in treatment which is necessary to save the life, or to prevent grave injury to the physical or mental health, of a pregnant woman. (7) The provisions of subsection (1) do not apply to, or in relation to, a person who, with intent to destroy the life of a child capable of being born alive, by any willful act causes such a child to die before it has an existence independent of its mother where it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother. (8) For the purposes of subsection (7), evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born alive. (9) For the purposes of sections 81 and 82, anything done with intent to procure the miscarriage of a woman is unlawfully done unless authorised by this section. (10) In this section and in sections 81 and 82— woman means any female person of any age.

Note: This version is not published under the Legislation Revision and Publication Act 2002 [1.4.2015]

Penalties

South Australia Criminal Law - Division 17—Abortion 81—Attempts to procure abortion:

(1) Any woman who, being with child, with intent to procure her own miscarriage, unlawfully administers to herself any poison or other noxious thing, or unlawfully uses any instrument or other means whatsoever with the like intent, shall be guilty of an offence and liable to be imprisoned for life.

(2) Any person who, with intent to procure the miscarriage of any woman, whether she is or is not with child, unlawfully administers to her, or causes to be taken by her, any poison or other noxious thing, or unlawfully uses any instrument or other means whatsoever with the like intent, shall be guilty of an offence and liable to be imprisoned for life.

82—Procuring drugs etc to cause abortion:

Any person who unlawfully supplies or procures any poison or other noxious thing, or any instrument or thing whatsoever, knowing that it is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she is or is not with child, shall be guilty of an offence and liable to be imprisoned for a term not exceeding three years.

82A—Medical termination of pregnancy: (1)

Notwithstanding anything contained in section 81 or 82, but subject to this section, a person shall not be guilty of an offence under either of those sections— (a) if the pregnancy of a woman is terminated by a legally qualified medical practitioner in a case where he and one other legally qualified medical practitioner are of the opinion, formed in good faith after both have personally examined the woman— (i) that the continuance of the pregnancy would involve greater risk to the life of the pregnant woman, or greater risk of injury to the physical or mental health of the pregnant woman, than if the pregnancy were terminated; or (ii) that there is a substantial risk that, if the pregnancy were not terminated and the child were born to the pregnant woman, the child would suffer from such physical or mental abnormalities as to be seriously handicapped, and where the treatment for the termination of the pregnancy is carried out in a hospital, or a hospital of a class, declared by regulation to be a prescribed hospital, or a hospital of a prescribed class, for the purposes of this section; or (b) if the pregnancy of a woman is terminated by a legally qualified medical practitioner in a case where he is of the opinion, formed in good faith, that the termination is immediately necessary to save the life, or to prevent grave injury to the physical or mental health, of the pregnant woman.

Subsection (1)(a) does not refer or apply to any woman who has not resided in South Australia for a period of at least two months before the termination of her pregnancy. (3) In determining whether the continuance of a pregnancy would involve such risk of injury to the physical or mental health of a pregnant woman as is mentioned in subsection (1)(a)(i), account may be taken of the pregnant woman's actual or reasonably foreseeable environment.

(4) The Governor may make regulations— (a) for requiring any such opinion as is referred to in subsection (1) to be certified by the legally qualified medical practitioners or practitioner concerned in such form and at or within such time as may be prescribed and for requiring the preservation and disposal of any such certificate made for the purposes of this Act; and (b) for requiring any legally qualified medical practitioner who terminates a pregnancy, and the superintendent or manager of the hospital in which the termination is carried out, to give notice of the termination and such other information relating to the termination as may be prescribed to the Director-General of Medical Services; and (c) for prohibiting the disclosure, except to such persons or for such purposes as may be prescribed, of notices or information given pursuant to the regulations; and (d) declaring a particular hospital or a class of hospitals to be a prescribed hospital or a prescribed class of hospitals for the purposes of this section; and (e) for providing for, and prescribing, any penalty, not exceeding two hundred dollars, for any contravention of, or failure to comply with, any regulations. (5) Subject to subsection (6), no person is under a duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this section to which he has a conscientious objection, but in any legal proceedings the burden of proof of conscientious objection rests on the person claiming to rely on it. (6) Nothing in subsection (5) affects any duty to participate in treatment which is necessary to save the life, or to prevent grave injury to the physical or mental health, of a pregnant woman. (7) The provisions of subsection (1) do not apply to, or in relation to, a person who, with intent to destroy the life of a child capable of being born alive, by any willful act causes such a child to die before it has an existence independent of its mother where it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother. (8) For the purposes of subsection (7), evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born alive. (9) For the purposes of sections 81 and 82, anything done with intent to procure the miscarriage of a woman is unlawfully done unless authorised by this section. (10) In this section and in sections 81 and 82— woman means any female person of any age.

Note: This version is not published under the Legislation Revision and Publication Act 2002 [1.4.2015]

Penalties

None found

Penalties deconstructed

Penalties only for unlawful/illegal abortions

Penalties

Reproductive Health (Access to Terminations) Act 2013 (No. 72 of 2013):

78D. Termination by person other than medical practitioner or pregnant woman (1) A person who performs a termination on a woman and who is not (a) a medical practitioner; or

(b) the pregnant woman is guilty of a crime.

Charge: Termination by person other than medical practitioner or pregnant woman.

(2) For the purposes of subsection (1), woman means a female person of any age.

Penalties

None found

Penalties

Reproductive Health (Access to Terminations) Act 2013 (No. 72 of 2013): 178E. Termination without woman's consent:

(1) A person who intentionally or recklessly performs a termination on a woman without the woman's consent, whether or not the woman suffers any other harm, is guilty of a crime.

Charge:
Termination without woman's consent.

(2) No prosecution is to be instituted against a medical practitioner who performs a termination on a woman if the woman is incapable of giving consent and the termination is (a) performed in good faith and with reasonable care and skill; and (b) is for the woman's benefit; and
(c) is reasonable having regard to all the circumstances. (3) For the purposes of this section, woman means a female person of any age.

Penalties deconstructed

Penalties only for unlawful/illegal abortions

Penalties

Crimes Act 1958 -

(11) Attempts to procure abortion-

65 Abortion performed by unqualified person:

(1) A person who is not a qualified person must not perform an abortion on another person. Penalty: Level 5 imprisonment (10 years maximum). (2) A woman who consents to, or assists in, the performance of an abortion on herself is not guilty of an offence against this section. (3) For the purposes of this section— (a) a registered medical practitioner is a qualified person; and (b) a registered pharmacist or registered nurse is a qualified person only for the purpose of performing an abortion by administering or supplying a drug or drugs in accordance with the Abortion Law Reform Act 2008. (4) In this section— abortion has the same meaning as in the Abortion Law Reform Act 2008; perform an abortion includes supply or procure the supply of any drug or other substance knowing that it is intended to be used to cause an abortion; registered medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student); registered nurse means a person registered under the Health Practitioner Regulation National Law to practise in the nursing and midwifery profession as a nurse or as a midwife (other than as a student); registered pharmacist means a person registered under the Health Practitioner Regulation National Law to practise in the pharmacy profession (other than as a student); woman means a female person of any age.

66 Abortion—Abolition of common law offences: Any rule of common law that creates an offence in relation to procuring a woman's miscarriage is abolished.

Penalties

None found

Penalties deconstructed

Legal grounds specified; penalties for all other abortions

Penalties

Western Australia Criminal Code Amended - Abortion 199. It is unlawful to perform an abortion (1) unless — (a) the abortion is performed by a medical 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.

(3) 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.

(4) In this section —
‘‘medical practitioner’’ has the same meaning as it has in the Health Act 1911.


(5) A reference in this section to performing an abortion includes a reference to — (a) attempting to perform an abortion; and (b) doing any act with intent to procure an abortion,

whether or not the woman concerned is pregnant.

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) to another person for that other person’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.’’

Penalties

None found