The topic of abortion has recently resurfaced in the news in Queensland due to concerning discussions about potentially recriminalising abortion. This has prompted a strong response from medical and advocacy organisations to defend abortion rights
Abortion in Queensland has a complex legal and social history spanning over a century. Prior to 2018, abortion was criminalised under the Queensland Criminal Code of 1899 under sections 224, 225, and 226.
Section 224 made it a criminal offence to perform an abortion, with a maximum penalty of 14 years imprisonment.
Section 225 made it illegal for a woman to attempt to procure her own miscarriage, with a maximum penalty of 7 years imprisonment.
Section 226 made it illegal to assist someone in procuring an abortion, with a maximum penalty of 3 years imprisonment.
The law remained largely unchanged for decades, forcing many Queensland women to travel interstate for abortions.
A significant development occurred in 1986 when Judge McGuire handed down the decision in R v Bayliss and Cullen. His Honour applied the reasoning from the Victorian case R v Davidson (1969), known as the Menhennitt ruling, to Queensland law.
The ruling established that abortion could be lawful if performed to protect a woman’s physical or mental health.
Judge McGuire interpreted section 282 of the Queensland Criminal Code as providing a defence to charges of unlawful abortion under Section 224.
The ruling stated that a prosecution under section 224 would fail unless the Crown could prove the abortion was not performed “for the preservation of the mother’s life” and was not “reasonable having regard to the patient’s state at the time and to all the circumstances of the case”.
This decision allowed abortions to be performed legally if the doctor honestly and reasonably believed it was necessary to preserve the woman from serious danger to her life or physical or mental health.
The ruling was upheld on appeal by the Supreme Court of Queensland and was later followed in other cases, such as Veivers v Connolly in 1995.
A major shift occurred in 2018 when the Queensland Parliament passed the Termination of Pregnancy Act. This landmark legislation decriminalised abortion, removing it from the Criminal Code and treating it as a health issue.
Key provisions of the new (and current) law include:
- Abortion is available on request up to 22 weeks of pregnancy.
- After 22 weeks, two doctors must approve the procedure.
- 150-meter safe access zones are established around abortion clinics.
- Doctors with conscientious objections must refer patients to providers who will perform the procedure.
This reform brought Queensland in line with several other Australian states and territories that had already decriminalised abortion. It marked a significant change in the legal and social landscape, ending over a century of criminalisation and uncertainty in Queensland.
Our team at Brooke Winter Solicitors specialise in criminal law. Our role is to sit down with you and work out the strategy that will get you the best possible result in accordance with the law. If you have any questions about this article or any other topic of law, please call our team of experts on 1300 066 669.
