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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Termination of Pregnancy
Bill 2020
A BILL FOR
An Act to reform the law relating to pregnancy terminations, to regulate
the conduct of health practitioners in relation to pregnancy terminations and to
make related amendments to the
Criminal
Law Consolidation Act 1935
and the
Intervention
Orders (Prevention of Abuse) Act 2009
.
Contents
Part 2—Termination
of pregnancies
Division 1—Lawful termination of
pregnancies
5Terminations may be
lawfully performed in South Australia
6Terminations by medical
practitioner from 22 weeks and 6 days
7Registered health
practitioners who may assist
8Registered health
practitioner may refuse to perform or assist in terminations
Division 2—Offences relating to
unlawful termination of pregnancies
10Termination of pregnancy by unqualified
person
11DPP's consent required for prosecution under
Part
Division 3—Protection from criminal
liability
12Person does not commit offence for termination
on themselves
13Conduct and performance
of registered health practitioners
14Restrictions on publication of certain
information
Part 2—Amendment of Criminal Law
Consolidation Act 1935
2Amendment of section 12A—Causing death by
an intentional act of violence
4Amendment of Schedule 11—Abolition of
certain offences
Part 3—Amendment of Intervention
Orders (Prevention of Abuse) Act 2009
5Amendment of section 8—Meaning of
abuse—domestic and non-domestic
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Termination of Pregnancy
Act 2020.
This Act comes into operation on a day to be fixed by
proclamation.
In this Act, unless the contrary intention appears—
assist in a termination includes—
(a) obtaining on behalf of, or supplying to, another person a drug or
other substance for use in a termination; and
(b) any other act that directly and materially aids in the performance of
a termination,
but does not include acts of a kind prescribed by the
regulations;
Department means the administrative unit of the Public
Service that is responsible for assisting a Minister in the administration of
the
Health
Care Act 2008
;
hospital has the same meaning as in the
Health
Care Act 2008
;
medical practitioner means a person registered under the
Health
Practitioner Regulation National Law
to practise in the medical profession, other than as a student;
private day procedure centre has the same meaning as in the
Health
Care Act 2008
;
private hospital has the same meaning as in the
Health
Care Act 2008
;
registered health practitioner means—
(a) a medical practitioner; or
(b) any other person registered under the
Health
Practitioner Regulation National Law
to practise in a health profession, other than as a student;
termination means an intentional termination of a pregnancy
in any way, including, for example, by—
(a) administering or prescribing a drug or other substance; or
(b) using a medical instrument or other thing,
and perform a termination and to terminate have
corresponding meanings.
This Act is in addition to and does not limit or derogate from the
provisions of the
Consent
to Medical Treatment and Palliative Care Act 1995
, the
Controlled
Substances Act 1984
or any other Act.
Part 2—Termination
of pregnancies
Division 1—Lawful
termination of pregnancies
5—Terminations
may be lawfully performed in South Australia
(1) A termination may be performed on a person if—
(a) in the case of a termination performed by a medical practitioner
acting in the ordinary course of the practitioner's profession—the
termination is performed on a person who is not more than 22 weeks and
6 days pregnant; or
(b) in the case of a termination performed by any other registered health
practitioner acting in the ordinary course of the practitioner's
profession—
(i) the termination is performed by administering a prescription drug or
by prescribing a drug; and
(ii) the termination is performed on a person who is not more than
63 days pregnant; and
(iii) the registered health practitioner is authorised to prescribe the
drug under section 18 of the
Controlled
Substances Act 1984
.
(2) A medical
practitioner may perform a termination on a person who is more than
22 weeks and 6 days pregnant if—
(a) the medical practitioner is acting in the ordinary course of the
practitioner's profession; and
(b) the termination is performed in accordance with
section 6
.
6—Terminations
by medical practitioner from 22 weeks and 6 days
(1) A medical
practitioner may perform a termination on a person who is more than
22 weeks and 6 days pregnant if—
(a) the medical practitioner considers that, in all the circumstances, the
termination is medically appropriate; and
(b) a second medical practitioner is consulted and that practitioner
considers that, in all the circumstances, the termination is medically
appropriate.
(2) In considering whether a termination is medically appropriate, a
medical practitioner must consider—
(a) all relevant medical circumstances; and
(b) the professional standards and guidelines that apply to the medical
practitioner in relation to the performance of the termination.
(3) Without limiting section 13 of the
Consent
to Medical Treatment and Palliative Care Act 1995
, a medical practitioner may, in an emergency, perform a termination on a
person who is more than 22 weeks and 6 days pregnant, without acting
under
subsection (1)
, if the medical practitioner considers it necessary to perform the
termination to—
(a) save the person's life, or
(b) save another foetus.
7—Registered
health practitioners who may assist
A registered health practitioner who performs a termination that is
authorised by this Act may be assisted by a registered health practitioner
acting in the ordinary course of the practitioner's profession.
8—Registered
health practitioner may refuse to perform or assist in
terminations
(1) If a registered
health practitioner conscientiously objects to—
(a) performing a termination on a person; or
(b) assisting in the performance of a termination on a person;
or
(c) providing advice to a person about the performance of a
termination,
the practitioner must—
(d) immediately inform the person of their conscientious objection;
and
(e) in the case of an
objection to performing a termination or providing advice about the performance
of a termination—
(i) transfer the person's care to a registered health practitioner who, in
the practitioner's opinion, can provide the requested service and does not have
a conscientious objection to the performance of the termination or providing
advice about the performance of the termination; or
(ii) provide the person
with information on how to locate or contact such a registered health
practitioner.
(2) A registered health practitioner will be taken to have complied with
an obligation under
subsection (1)(e)(ii)
if the practitioner gives the person information in the prescribed
form.
(3) This section does not limit any duty owed by a registered health
practitioner to—
(a) perform, or to assist in the performance of, a termination in an
emergency; or
(b) provide after care or ancillary medical treatment associated with a
termination.
(1) A registered health practitioner who performs a termination in
accordance with this Act, or a registered health practitioner who assists or is
otherwise involved in such a termination—
(a) incurs no criminal liability for an act or omission in so doing;
and
(b) incurs no civil liability for an act or omission in so doing, provided
that the act or omission was done or made in good faith and without
negligence.
(2) A registered health practitioner who, in accordance with
section 8
, refuses to—
(a) perform a termination on a person; or
(b) assist in the performance of a termination on a person; or
(c) provide advice to a person about the performance of a
termination,
incurs no civil liability for an act or omission in so doing.
(3) For the purposes of this section, a reference to the civil liability
of a person includes a reference to liability arising under disciplinary
proceedings or similar proceedings.
Division 2—Offences
relating to unlawful termination of pregnancies
10—Termination
of pregnancy by unqualified person
(1) An unqualified
person who performs a termination on another person commits an
offence.
Maximum penalty: 7 years imprisonment.
(2) An unqualified
person who assists in the performance of a termination on another person commits
an offence.
Maximum penalty: 5 years imprisonment.
(3) In this section—
unqualified person means—
(a) in relation to the performance of a termination under
subsection (1)
—a person who is not a registered health practitioner authorised
under this Act to perform a termination; or
(b) in relation to assisting in the performance of a termination under
subsection (2)
—a person who is not a registered health practitioner acting in the
ordinary course of the practitioner's profession.
11—DPP's
consent required for prosecution under Part
A prosecution for an offence against this Part cannot be commenced without
the Director of Public Prosecution's written consent.
Division 3—Protection
from criminal liability
12—Person
does not commit offence for termination on themselves
Despite any other Act or law, a person who consents to, assists in or
performs, or attempts to perform, a termination on themselves does not commit an
offence.
13—Conduct
and performance of registered health practitioners
(1) In considering
a matter under an Act about a registered health practitioner's professional
conduct or performance, regard may be had to whether the
practitioner—
(a) terminates a pregnancy other than as authorised under
section 5
or
6
; or
(b) assists another
registered health practitioner to terminate a pregnancy other than as authorised
under
section 7
; or
(c) contravenes
section 8
.
(2) For the purposes of
subsection (1)(b)
, a person assists another registered health practitioner to terminate a
pregnancy if the person—
(a) obtains on behalf of, or supplies to, another person a drug or other
substance for the purposes of the termination; or
(b) takes any other step to organise or facilitate, or otherwise takes
part in, the termination.
(3) The matters to which
subsection (1)
applies include the following:
(a) a notification under the
Health
Practitioner Regulation National Law (South Australia)
Act 2010
;
(b) a complaint under the
Health
and Community Services Complaints Act 2004
.
(4) This Act does not limit any duty a registered health practitioner has
to comply with professional standards or guidelines that apply to health
practitioners.
14—Restrictions
on publication of certain information
Subject to this or any other Act or law, a person engaged or formerly
engaged in connection with the operation of this Act must not publish
information or data (however described) that identifies, or contains information
tending to identify the name or address of a person who has sought or received a
termination.
Maximum penalty:
(a) in the case of a natural person—$50 000;
(b) in the case of a body corporate—$120 000.
(1) A person engaged or
formerly engaged in connection with the operation of this Act must not disclose
personal information relating to a person obtained while so engaged except to
the extent that he or she may be authorised or required to disclose that
information—
(a) by the Chief Executive or their employer; or
(b) in the case of information obtained while working at an incorporated
hospital or SAAS—by the hospital or SAAS (as the case requires).
Maximum penalty: $10 000.
(2)
Subsection (1)
does not prevent a person from—
(a) disclosing information as required or authorised by or under law;
or
(b) disclosing information at the request, or with the consent,
of—
(i) the person to whom the information relates; or
(ii) a guardian of the person to whom the information relates;
or
(iii) a medical agent of the person to whom the information relates;
or
(iv) a substitute decision-maker for the person to whom the information
relates (within the meaning of the
Advance
Care Directives Act 2013
); or
(c) disclosing
information to a relative, carer or friend of the person to whom the information
relates if—
(i) the disclosure is reasonably required for the treatment, care or
rehabilitation of the person; and
(ii) there is no reason to believe that the disclosure would be contrary
to the person's best interests; or
(d) subject to the regulations (if any)—
(i) disclosing information to a health or other service provider if the
disclosure is reasonably required for the treatment, care or rehabilitation of
the person to whom the information relates; or
(ii) disclosing information by entering the information into an electronic
records system established for the purpose of enabling the recording or sharing
of information between persons or bodies involved in the provision of health
services; or
(iii) disclosing information to such extent as is reasonably required in
connection with the management or administration of a hospital or SAAS
(including for the purposes of charging for a service); or
(e) disclosing information if the disclosure is reasonably required to
lessen or prevent a serious threat to the life, health or safety of a person, or
a serious threat to public health or safety; or
(f) disclosing information for medical or social research purposes if the
research methodology had been approved by an ethics committee and there is no
reason to believe that the disclosure would be contrary to the person's best
interests; or
(g) disclosing information in accordance with the regulations.
does not authorise the disclosure of personal information in contravention
of a direction given by the person to whom the information relates.
(4) Information that has been disclosed under
subsection (2)
for a particular purpose must not be used for any other purpose
by—
(a) the person to whom the information was disclosed; or
(b) any other person who gains access to the information (whether properly
or improperly and whether directly or indirectly) as a result of that
disclosure.
Maximum penalty: $10 000.
(5) The regulations may make further provision in respect of the
disclosure of information obtained in the course of the administration of this
Act.
(6) For the purposes of this section, a reference to a person
engaged in connection with the operation of this Act includes a
reference to a person engaged in connection with the operation of the
Health
Care Act 2008
under section 93(1) of that Act.
(7) In this section—
Chief Executive has the same meaning as in the
Health
Care Act 2008
;
personal information means information or an opinion, whether
true or not, relating to a natural person or the affairs of a natural person
whose identity is apparent, or can reasonably be ascertained, from the
information or opinion;
SAAS has the same meaning as in the
Health
Care Act 2008
.
(1) The Minister must cause a review of this Act and its administration
and operation to be conducted on the expiry of 5 years from its
commencement.
(2) The review must be completed within 6 months and the results of
the review embodied in a written report.
(3) The Minister must cause a copy of the report to be laid before both
Houses of Parliament within 12 sitting days after receiving the
report.
(1) The Governor may
make such regulations as are contemplated by this Act or as are necessary or
expedient for the purposes of this Act.
(2) Without limiting the generality of
subsection (1)
, the regulations may—
(a) require any registered health practitioner, hospital or private day
procedure centre to collect and provide the Minister or the Department with data
and statistics in relation to services connected with the performance of
terminations; and
(b) require reports or information of any other kind to be provided to the
Minister or the Department.
(3) The regulations may—
(a) make different provision according to the persons, things or
circumstances to which they are expressed to apply; and
(b) be of general or limited application; and
(c) provide that a matter or thing is to be determined, dispensed with,
regulated or prohibited according to the discretion of the Minister or another
prescribed authority; and
(d) make provisions
of a saving or transitional nature consequent on the enactment of this Act or on
the commencement of specified provisions of this Act or on the making of
regulations under this Act.
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
Part 2—Amendment of Criminal Law
Consolidation Act 1935
2—Amendment
of section 12A—Causing death by an intentional act of
violence
Section 12A—delete "(other than abortion¹)"
3—Repeal
of Part 3 Division 17
Part 3 Division 17—delete Division 17
4—Amendment
of Schedule 11—Abolition of certain offences
Schedule 11, clause 1—after (29) insert:
; and
(30) abortion.
Part 3—Amendment of Intervention Orders
(Prevention of Abuse) Act 2009
5—Amendment
of section 8—Meaning of abuse—domestic and
non-domestic
Section 8(4)—after paragraph (oc) insert:
(od) coercing a person to terminate a pregnancy;
(oe) coercing a person to not terminate a pregnancy;