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This is a Bill, not an Act. For current law, see the Acts databases.
2019-2020-2021
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Human Rights (Children Born Alive
Protection) Bill 2021
No. , 2021
(Mr Christensen)
A Bill for an Act to protect children born alive
(including as a result of terminations), and for
related purposes
No. , 2021
Human Rights (Children Born Alive Protection) Bill 2021
i
Contents
Part 1--Preliminary
1
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 2
3
Definitions ......................................................................................... 2
4
Binding the Crown ............................................................................ 3
5
Extension to external Territories ....................................................... 4
6
Concurrent operation of State and Territory laws .............................. 4
7
Constitutional basis of this Act .......................................................... 4
Part 2--Children born alive are persons
5
8
Children born alive are persons ......................................................... 5
Part 3--Duty of health practitioners
6
9
Duty of health practitioners to provide medical care or
treatment to children born alive as a result of terminations ............... 6
10
Offence of contravening duty to provide medical care or
treatment to children born alive ......................................................... 7
11
Duty of health practitioners to report births of children born
alive as a result of terminations ......................................................... 7
12
Mother of child born alive not liable to prosecution .......................... 8
13
Additional operation of this Part ........................................................ 9
No. , 2021
Human Rights (Children Born Alive Protection) Bill 2021
1
A Bill for an Act to protect children born alive
1
(including as a result of terminations), and for
2
related purposes
3
The Parliament of Australia enacts:
4
Part 1--Preliminary
5
6
1 Short title
7
This Act is the
Human Rights (Children Born Alive Protection) Act
8
2021
.
9
Part 1
Preliminary
Section 2
2
Human Rights (Children Born Alive Protection) Bill 2021
No. , 2021
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
7
enacted. It will not be amended to deal with any later amendments of
8
this Act.
9
(2) Any information in column 3 of the table is not part of this Act.
10
Information may be inserted in this column, or information in it
11
may be edited, in any published version of this Act.
12
3 Definitions
13
In this Act:
14
born alive
includes born alive as a result of a termination.
15
Convention on the Rights of the Child
means the Convention on
16
the Rights of the Child done at New York on 20 November 1989,
17
as in force for Australia from time to time.
18
Note:
The Convention on the Rights of the Child is in Australian Treaty
19
Series 1991 No. 4 ([1991] ATS 4) and could in 2021 be viewed in the
20
Australian Treaties Library on the AustLII website
21
(http://www.austlii.edu.au).
22
engage in conduct
means:
23
(a) do an act; or
24
(b) omit to perform an act.
25
Preliminary
Part 1
Section 4
No. , 2021
Human Rights (Children Born Alive Protection) Bill 2021
3
health practitioner
means a person who, under a law of a State or
1
Territory, is registered or licensed to practice in any of the
2
following health professions (or a recognised specialty in any of
3
the following health professions):
4
(a) Aboriginal and Torres Strait Islander health practice;
5
(b) medical;
6
(c) nursing.
7
health practitioner registration board
means a person or body
8
who, under a law of a State or Territory, registers or licenses
9
persons to practice in a health profession (or in a recognised
10
specialty in a health profession).
11
International Covenant on Civil and Political Rights
means the
12
International Covenant on Civil and Political Rights done at New
13
York on 16 December 1966, as in force for Australia from time to
14
time.
15
Note:
The International Covenant on Civil and Political Rights is in
16
Australian Treaty Series 1980 No. 23 ([1980] ATS 23) and could in
17
2021 be viewed in the Australian Treaties Library on the AustLII
18
website (http://www.austlii.edu.au).
19
medical care or treatment
: see subsections 9(4) and (5).
20
professional standards or guidelines
includes:
21
(a) an approved registration standard (within the meaning of the
22
Health Practitioner Regulation National Law), or code or
23
guidelines approved by a National Board (within the meaning
24
of that Law); and
25
(b) clinical guidelines issued by a State or Territory.
26
termination
means an intentional termination of a pregnancy in
27
any way, including by:
28
(a) administering a drug or other substance; or
29
(b) using an instrument or other thing.
30
4 Binding the Crown
31
This Act binds the Crown in each of its capacities.
32
Part 1
Preliminary
Section 5
4
Human Rights (Children Born Alive Protection) Bill 2021
No. , 2021
5 Extension to external Territories
1
This Act extends to the external Territories.
2
6 Concurrent operation of State and Territory laws
3
This Act is not intended to exclude or limit the operation of a law
4
of a State or Territory that:
5
(a) protects:
6
(i) children born alive as a result of terminations; or
7
(ii) all children born alive; and
8
(b) is capable of operating concurrently with this Act.
9
7 Constitutional basis of this Act
10
This Act gives effect to Australia's international obligations under:
11
(a) the Convention on the Rights of the Child, and in particular
12
Articles 6 and 24; and
13
(b) the International Covenant on Civil and Political Rights, and
14
in particular Articles 24 and 26.
15
Children born alive are persons
Part 2
Section 8
No. , 2021
Human Rights (Children Born Alive Protection) Bill 2021
5
Part 2--Children born alive are persons
1
2
8 Children born alive are persons
3
To avoid doubt, for the purposes of the law of the Commonwealth,
4
a child born alive is a person.
5
Part 3
Duty of health practitioners
Section 9
6
Human Rights (Children Born Alive Protection) Bill 2021
No. , 2021
Part 3--Duty of health practitioners
1
2
9 Duty of health practitioners to provide medical care or treatment
3
to children born alive as a result of terminations
4
(1) The duty owed by a health practitioner to provide medical care or
5
treatment to a child born alive as a result of a termination is no
6
different than the duty (including a duty under the law of a State or
7
Territory or the general law) owed to provide medical care or
8
treatment to a child born alive other than as a result of a
9
termination.
10
Health practitioner registration board must deal with
11
contraventions of duty to provide medical care or treatment to
12
children born alive as a result of terminations
13
(2) Without limiting subsection (1), if a health practitioner engages in
14
conduct that contravenes the duty owed to provide medical care or
15
treatment to a child born alive as a result of a termination, a health
16
practitioner registration board must treat the conduct in the same
17
way as the board would have treated the conduct had the live birth
18
not been the result of a termination.
19
Professional standards or guidelines
20
(3) Subsections (1) and (2) have effect despite anything to the contrary
21
in professional standards or guidelines that apply to health
22
practitioners.
23
Meaning of medical care or treatment
24
(4) A reference in this Act to
medical care or treatment
is a reference
25
to medical care or treatment that is appropriate in the
26
circumstances.
27
Example: Depending on the circumstances, appropriate medical care or
28
treatment could involve:
29
(a) life-saving emergency treatment; or
30
Duty of health practitioners
Part 3
Section 10
No. , 2021
Human Rights (Children Born Alive Protection) Bill 2021
7
(b) palliative care.
1
(5) For the purposes of subsection (4), in determining what medical
2
care or treatment it is appropriate to provide to a child in particular
3
circumstances, the fact that:
4
(a) the birth of the child; or
5
(b) any of those circumstances;
6
was a result of a termination is not relevant.
7
10 Offence of contravening duty to provide medical care or
8
treatment to children born alive
9
A person commits an offence if:
10
(a) the person is a health practitioner; and
11
(b) a child is born alive; and
12
(c) the health practitioner owes a duty to provide medical care or
13
treatment to the child; and
14
(d) the health practitioner engages in conduct; and
15
(e) the health practitioner's conduct contravenes that duty.
16
Note:
This section applies whether or not the live birth results from a
17
termination.
18
Penalty: 2,000 penalty units.
19
11 Duty of health practitioners to report births of children born
20
alive as a result of terminations
21
Purpose of this section
22
(1) The purpose of this section is to enable the production of statistics
23
relating to children born alive as a result of terminations.
24
Duty
25
(2) If a child is born alive as a result of a termination, a health
26
practitioner who:
27
(a) caused the termination; or
28
(b) is present at the birth;
29
Part 3
Duty of health practitioners
Section 12
8
Human Rights (Children Born Alive Protection) Bill 2021
No. , 2021
must ensure that the birth is reported to the Department in
1
accordance with subsection (3) within 5 business days.
2
(3) The report must:
3
(a) be in writing; and
4
(b) include the following information:
5
(i) the date and place of birth;
6
(ii) the gestational age of the child at birth;
7
(iii) details of the medical care and treatment provided to the
8
child after birth;
9
(iv) whether the child survived; and
10
(c) not identify the child or the child's mother.
11
Offence
12
(4) A person commits an offence if:
13
(a) the person is a health practitioner; and
14
(b) a child is born alive as a result of a termination; and
15
(c) the health practitioner has a duty to ensure that the birth is
16
reported to the Department under subsection (2); and
17
(d) the health practitioner engages in conduct; and
18
(e) the health practitioner's conduct contravenes that duty.
19
Penalty: 100 penalty units.
20
12 Mother of child born alive not liable to prosecution
21
Neither:
22
(a) section 10 or 11 of this Act; nor
23
(b) Division 11 of the
Criminal Code
, to the extent it relates to
24
section 10 or 11 of this Act;
25
make the mother of a child born alive liable to be prosecuted for an
26
offence in respect of that child.
27
Duty of health practitioners
Part 3
Section 13
No. , 2021
Human Rights (Children Born Alive Protection) Bill 2021
9
13 Additional operation of this Part
1
(1) In addition to section 7, this Part also has effect as provided by this
2
section.
3
(2) This Part also has the effect it would have if a reference to medical
4
care or treatment were expressly confined to medical care or
5
treatment undertaken by or on behalf of a corporation to which
6
paragraph 51(xx) of the Constitution applies.
7