VCE LEGAL STUDIES
Unit
3
CASE STUDIES IN MEDICINE AND TECHNOLOGY
Abortion Law Reform Act 2008 (Vic)
Assisted Reproductive Treatment Bill 2008 (Vic)
CASE STUDY ONE:
ABORTION LAW REFORM ACT 2008 (VIC)
The passage of this legislation represented a significant and historic change in the way abortion
is regulated in Victoria. It was the final step in a process the Victorian Parliament commenced in
August 2007 when it announced that it would seek advice from the Victorian Law Reform
Commission about options to clarify the law of abortion.
In providing this advice the Commission was asked to provide options that would remove
abortion offences from the Crimes Act 1958 where performed by a qualified medical practitioner,
reflect current clinical practice and reflect community standards. Many individuals and groups
contributed to the Commission’s investigations, which highlights the dynamic nature of policy
development and law-making by parliament.
Links to Unit 3 VCE Legal Studies course
 Strengths of parliament as a law-maker:
- can act swiftly to change the law where the need arises.
- can change an entire area of law with one piece of legislation.
- can seek out public opinion and expert advice (via its committee system), which
enhances the notion of representative government.
 The nature and role of formal law reform bodies.
 The nature of informal pressures for a change in the law.
Previous legislative framework
Prior to the Abortion Law Reform Act 2008 (Vic), abortion was prohibited under the Crimes Act
1958 (Vic). Section 65 of the Crimes Act provided that unlawful termination of pregnancy at any
stage during pregnancy was prohibited. Section 66 also prohibited the supply of an instrument or
substance knowing it will be used to unlawfully terminate a pregnancy. Between 1864 and 2008,
versions of section 65 and 66 have formed part of the Victorian criminal law.
The Menhennitt ruling
In 1969, a Supreme Court judge, Justice Menhennitt, outlined the circumstances in which an
abortion was lawful. This changed abortion law in Victoria. Justice Menhennitt called this a
'therapeutic abortion' and his ruling set out the matters the prosecution must prove to satisfy a
jury that a termination of pregnancy was unlawful. He said a therapeutic abortion is lawful in the
following circumstances:
“For the use of an instrument with intent to procure a miscarriage to be lawful the accused must
have honestly believed on reasonable grounds that the act done by him was (a) necessary to
preserve the woman from a serious danger to her life or her physical or mental health (not being
merely the normal dangers of pregnancy and childbirth) which the continuation of the pregnancy
would entail; and (b) in the circumstances not out of proportion to the danger to be averted. “
page 1
1
VCE LEGAL STUDIES
Unit
3
Links to Unit 3 VCE Legal Studies course
 The relationship between parliaments and courts in law-making. In this case, the
parliament created the legislation to outlaw abortion, while the courts created the defence
of a ‘therapeutic abortion’.
 The strength of the courts as a law-maker in responding to situations in society as they
arise, without having to focus on community pressures and popular opinion.
However, the Menhennitt ruling did not provide the Victorian community (and especially doctors
and other health care professionals) with a clear statement about when a termination of
pregnancy is permissible. The common law is not designed for that purpose.
The Victorian Supreme Court had not considered these provisions in the Crimes Act
since the Menhennitt rules were formulated and no one had been charged under the criminal law
with performing an unlawful abortion in Victoria for 21 years. It should be noted that doctors have
appeared before the Medical Practitioners’ Board for alleged misconduct over the performance of
an abortion. A recent case involved a doctor who performed an abortion on a woman with a
severe intellectual disability; the doctor had not obtained consent from the VCAT to conduct the
procedure, instead relying on permission from the girl’s parents to perform the abortion.
The Menhennitt ruling did not give guidance as to the matters that should be taken into
account by the doctor when determining risk of harm to the woman, or the means for determining
whether an abortion was the appropriate response to the woman's particular circumstances.
The courts of other states, which have subsequently expanded upon the Menhennitt
ruling, provided more authoritative guidance. In 1995, the majority of the NSW Court of Appeal, in
CES v. Super Clinics affirmed and clarified social and economic factors, both during and after
pregnancy, could be considered when assessing risk to the pregnant woman's health. This
operated as persuasive precedent in Victoria until the passing of the Abortion Law Reform Act
2008.
Links to Unit 3 VCE Legal Studies course
The weaknesses of the courts as a law-maker, in that:
 Courts only create legal principles – the ratio decidendi – to meet the demands of the
specific facts of the case in question. The role of the court is not to issue broad policy
initiatives; this role is played by parliament. Unless parliament acts in response to the
development of the common law, then uncertainty will arise.
 The Menhennitt ruling from 1969 has not been subsequently reviewed through a further
case appearing before the courts. Therefore, a precedent that may have been entirely
appropriate in 1969 may no longer be socially or legally appropriate.
The purpose of the Abortion Law Reform Act 2008
According to supporters of the legislation, modern laws that reflect current clinical practice and
community standards with regard to abortion were long overdue. By introducing this law, the
government allowed that women should be supported in their health choices, and provided with
legal certainty when making these choices. Over the past 30 years, medical and health
practitioners and lawyers argued for legal certainty on the circumstances in which an abortion is
legal. Indeed a wide range of individuals and groups campaigned for reform.
According to the second reading speech for this bill (delivered by Minister for Women’s
Affairs, Ms Maxine Morand): “The government has committed to the development of legislation
that provides clarity for women, health practitioners and the community about the circumstances
in which the termination of pregnancy can be performed. In recognising the sensitivity and
complexity of this issue, detailed advice was sought from the Victorian Law Reform Commission.
“
Links to Unit 3 VCE Legal Studies course
 This highlights the strengths of the parliament as a law-maker, in that the parliament can
repeal existing legislation and codify the common law to provide an entirely new legal
framework that meets community values.
page 2
2
VCE LEGAL STUDIES

Unit
3
The ‘dwarfism case’ also highlighted the urgent need for clarity in the area of congenital
abnormalities. In that case, the Royal Women’s Hospital performed an abortion on a
woman at 32 week’s pregnancy. She was severely distressed after learning, through an
ultrasound scan, that her baby may have been born with dwarfism.
Victorian Law Reform Commission advice
To explore the key issues associated with this reform, the commission undertook widespread
consultation with organisations and individuals:
 Responses were obtained from 36 meetings and over 500 written submissions were
received.
 The Commission convened a panel of experts from relevant health professions to advise
them on current clinical practice and a broad range of medical issues. People were
invited to join the panel because of their high professional standing, rather than any direct
involvement in the provision of abortion services.
 Key issues identified included the need for certainty and clarity in the law; and safe,
quality services including a capacity for timely access.
 The Commission found that the rate of abortion is related to the rate of unplanned
pregnancy, and the availability and use of contraception. The Commission also found
that, according to community and medical standards, there was a desire for a reduction in
the rate of abortion.
 The Commission found that the great majority of abortions are conducted in the early
stages of pregnancy -- 94.6 per cent of abortions occur before 13 weeks, and 4.7 per
cent occur after 13 weeks but before 20 weeks. A small percentage, less than 1.0 per
cent, is performed after 20 weeks gestation.
 A 24-week gestational limit is common for more complex cases and is reflected in current
clinical practice in Victoria, Australia and overseas.
 The Commission made a number of recommendations to improve the clarity of the law
beyond the changes to the Crimes Act. These included that any new laws around
termination of pregnancy should not contain mandated information provisions,
requirements for mandatory counselling or mandatory referral to counselling, compulsory
delay or cooling-off periods, and that any new law should not contain restrictions on
where terminations may be performed. The Abortion Law Reform Act 2008 is consistent
with the recommendations of the Commission.
Links to Unit 3 VCE Legal Studies course
If students are required to discuss a formal law reform body, this would be an ideal, contemporary
example. You must also be aware of the exact nature and structure of the Commission. This is
contained in textbooks and study guides but can also be found at www.lawreform.vic.gov.au
The new legislative framework
This legislation drew on the recommendations of the Victorian Law Reform Commission’s final
report on the law of abortion (March 2008), and reflected the two-staged approach based on 24
weeks’ gestation.
 Under this law, abortions are regulated like any other medical procedure where the
woman is 24 weeks pregnant or less. Abortion where the woman is 24 weeks pregnant or
less will be a private decision for a woman in consultation with her medical practitioner.
 After 24 weeks gestation, a registered medical practitioner may perform an abortion on a
woman who is more than 24 weeks pregnant only if the medical practitioner reasonably
believes that the abortion is appropriate in all the circumstances, and secondly, has
consulted at least one other medical practitioner who also reasonably believes that the
abortion is appropriate in all the circumstances. In considering all the circumstances the
registered medical practitioner must have regard to all relevant medical circumstances
and the woman's current and future physical, psychological, and social circumstances.
page 3
3
VCE LEGAL STUDIES




Unit
3
The legislation also explicitly authorises the administration and supply of drugs by a
registered pharmacist or a registered nurse in a hospital or day procedure centre for the
purpose of causing an abortion in a woman who is more than 24 weeks pregnant where
this is at the direction of a registered medical practitioner.
As with surgical abortions the registered medical practitioner must reasonably believe
that abortion is appropriate in all circumstances, and that opinion must be shared by at
least one other medical practitioner.
This framework provides Victoria with a regulatory framework through which abortions,
like any other medical procedure, can be monitored.
The Abortion Law Reform Act 2008 repealed parts of the Crimes Act that referred to the
offences of unlawful termination of pregnancy (sections 65 and 66) and child destruction
(section 10). The concept of 'serious injury' has been amended to include destruction of
the foetus of a pregnant woman other than in the course of a medical procedure (section
5), and a new offence will be created for an abortion performed by an unqualified person.
The law also provides that a woman, who consents to or assists in the performance of an
abortion on herself by an unqualified person, is not guilty of an offence.
Passage of the bill through the Legislative Assembly
When the Abortion Law Reform Bill 2008 was debated in the Legislative Assembly, there was
great controversy over the 41 amendments proposed to the legislation. Many of the amendments
attempted to change the Bill by insisting counselling be offered to all women before and after an
abortion, or introducing a panel to consider an abortion after 24 weeks. The Bill eventually passed
the lower house in September 2008 without amendment.
An interesting aspect of the legislation was that a conscience vote was allowed. This
meant that members could vote according to their personal views rather than the dictates of the
party or their local constituents. This led to some interesting debates, which saw members of
parliament who are usually party colleagues having open and public disagreements over the
nature of the Bill.
For example, Sports Minister, James Merlino, opposed the Bill, introducing a number of
amendments. He expressed concern that the legislation may increase the number of abortions in
Victoria (currently about 20,000 per year). His opinions were opposed by Premier Brumby. The
Liberal Party and the National Party also had members disagreeing over the Bill.
Passage of the Bill through the Legsilative Council
On 10 October 2008, members of the Legsilative Council voted 23 to 17 in favour of the Abortion
Law Reform Bill 2008, without amendments. Once again, key members of the government,
including Treasurer, John Lenders, opposed the legilsation which was widely supprted by his own
party. In one of the toughest debates in parliament in decades, the President of the Legislative
Council, Bob Smith, became upset after opponents of the Bill screamed from the public gallery.
Four pro-life activists were evicted from the chamber. Also, all MPs who voted for the Bill were
sent an email saying: "You have just condemned untold numbers of unborn Victorians to death …
You are, each and every one of you, a disgrace to humanity."
Links to Unit 3 VCE Legal Studies course
The nature of a conscience vote provides excellent grounds for discussing the strengths and the
weaknesses of the parliament as a law-maker:
 Conscience votes allow for free and open expression of opinions by members of
parliament. This often enhances community debate of the issue because members of
parliament express a more diverse range of views in the media. The consequences of
conscience votes in stimulating public debate were also seen in other examples (both
from the Commonwealth Parliament) of legislation on the abortion drug, RU 486, and
stem cell research/therapeutic cloning. This could be considered a strength of the
parliament as a law-maker, because MPs tend to canvass widely and speak with lobby
page 4
4
VCE LEGAL STUDIES

Unit
3
groups and their constituents. In this way, parliament is more representative than the
usual situation where Members obey the dictates of their parliamentary leaders.
There is, however, an inherent weakness in the conscience vote model, which relates to
representative government. We, the people, vote for political parties based on a range of
issues and matters that we regard as being important. These most often relate to social
and moral issues. A conscience vote allows Members to vote on legislation from an
entirely personal perspective, which seems to be inconsistent with the model of
representative government that underpins our democratic system.
Informal processes for change
Being such a contentious issue, the abortion debate involved many individuals and groups. Some
of the tactics were confronting (including sending photographs and small plastic dolls to MPs),
while others encouraged more traditional means of influencing change, such as approaching
Members directly.
The Internet was also used as a means of attracting attention to the debate. Groups such
as the Catch the Fire Ministry used its website to encourage supporters to contact local members
of parliament, as well as asking people to forward e-mails to friends encouraging opposition to the
legislation. Another group, Pro-Choice Victoria, also used its website, with direct links to MPs to
express support for the Bill. They also produced t-shirts to aid their campaign.
Links to Unit 3 VCE Legal Studies course
Informal processes for promoting change in the law are an important part of the law-making process.
You can use the above examples on an assessment task (including the final exam) as follows:
 If you are asked to describe informal processes for change and their purpose.
 In terms of the strengths of the parliament as a law-maker, the roles played by informal
processes assist members of parliament to understand the opinions and beliefs of voters;
this contributes to representative government.
The ongoing dilemmas
The section of the Abortion Law Reform Act 2008 that caused the greatest controversy was
section 8. This related to the obligations of registered health practitioners who have conscientious
objections to performing abortion procedures. The law reads as follows:
(1) If a woman requests a registered health practitioner to advise on a proposed abortion, or
to perform, direct, authorise or supervise an abortion for that woman, and the practitioner
has a conscientious objection to abortion, the practitioner must—
a) inform the woman that the practitioner has a conscientious objection to abortion;
and
b) refer the woman to another registered health practitioner in the same regulated
health profession who the practitioner knows does not have a conscientious
objection to abortion.
It has been argued by Professor of Law, Frank Brennan, that this section of the Act is in breach of
the Victorian Parliament’s Charter of Rights and Freedoms, which guarantees freedom of
thought, conscience, religion and belief. Brennan argues that the requirement that doctors must
refer a woman to a doctor who does not have objections to performing an abortion contravenes
freedom of thought and conscience. To read the full text of the piece by Frank Brennan, go to
www.eurekastreet.com.au/article.aspx?aeid=9155
To view the full text of the Act, click here Abortion Law Reform Act 2008.pdf
page 5
5
VCE LEGAL STUDIES
Unit
3
CASE STUDY TWO:
ASSISTED REPRODUCTIVE TREATMENT BILL 2008 (VIC)
Australian Bureau of Statistics figures show that the make-up of Australian households has
changed significantly since the mid-1990s. In 1996, couples with children made up 50 percent of
families. Ten years later, that figure had fallen to 46 percent. In that time, the number of oneparent families jumped by almost 25 per cent. In 2008, of Australia's 5.9 million families, about
27,000 were same-sex couples.
With rapid changes in science and technology and shifts in social and moral values, the
Victorian Parliament decided that reform of a range of laws was necessary. In September 2008,
Parliament repealed the Infertility Treatment Act (1995) and proposed that it be replaced with
three separate pieces of legislation:
 Research Involving Human Embryos Bill 2008
 Prohibition of Human Cloning for Reproduction Bill 2008
 Assisted Reproductive Treatment Bill 2008
By the end of 2008, the Research Involving Human Embryos Bill 2008 and the Prohibition of
Human Cloning for Reproduction Bill 2008 had been passed by both Houses. The Assisted
Reproductive Treatment Bill 2008 was amended in the Legislative Council and awaited further
consideration by Parliament.
The need for change in the law
The Assisted Reproductive Treatment Bill 2008 implemented many of the 202 recommendations
that were made by the Victorian Law Reform Commission in its Assisted Reproductive
Technology & Adoption: Final Report. This report was released in June 2007. The VLRC Report
followed extensive consultation on the social, ethical and legal issues related to assisted
reproduction, including the interests of people in same-sex relationships and of the children of
parents in same-sex relationships. The VLRC found that under existing law, the following issues
needed to be addressed:
 Single women or women in same-sex relationships who wished to use donor sperm from
a clinic because they do not have male partners cannot access reproductive treatment
unless they are clinically infertile.
 When children are born to same-sex couples, they are disadvantaged because one of the
people caring for them is not legally recognised as their parent.
 A child is not entitled to child support from their non-birth mother if a couple breaks up.
Nor does a child have an automatic right to claim on the estate of their non-birth mother if
she dies.
 It is almost impossible for a surrogate mother to have treatment in a reproductive clinic,
because she must be ‘unlikely to become pregnant’ through normal means before she
can receive treatment from the clinic.
 The law did not recognise the people who arrange to have a child through surrogacy as
the parents, even if they are the genetic parents of the child.
Passage of the bill through the Legislative Assembly
This Bill aimed to bring Victoria into line with other states and ensure that Victoria meets federal
anti-discrimination law by providing women, regardless of marital status or sexual orientation, with
access to artificial reproductive treatment. It also gives greater access to fertility treatment for
lesbians and single women, a simpler arrangement for surrogates and increased legal rights for
gays as parents.
page 6
6
VCE LEGAL STUDIES
Unit
3
The original version of the Assisted Reproductive Treatment Bill gained majority support
in the Lower House with 47 votes to 34. Fifty proposed amendments to the legislation were
rejected. Liberal and National Party members voted against the Bill and were joined by four Labor
Party members - Christine Campbell, Marlene Kairouz, George Seitz and James Merlino. Like
the Abortion Law Reform Act 2008, this legislation proceeded as a conscience vote.
Premier Brumby gave his support for the Bill, saying the best interests of a child is the
key focus: "What underpins all of this is an understanding that we're really talking here about the
quality of family life. The quality of family relationships determines the emotional, social and
psychological outcomes for children, not necessarily the family structure into which they have
been born," he said. "And I think a key theme of this is that good parenting is about giving
children unconditional love and that is certainly what I believe the Law Reform Commission was
saying in its report."
However, Opposition Leader Ted Baillieu rejected Mr Brumby’s views: "I look at this from
a child's perspective. Life is complex enough and I think the proposals in the ART bill don't assist
in that process at all," he said.
The role of the Scrutiny of Acts and Regulations Committee
The Committee conducted an inquiry into the Bill and the submissions which it received make for
interesting and insightful reading. Visit the link below to discover the types of issues which arise
for people who are involved in this area www.parliament.vic.gov.au/SARC/ART%20legislation/default.htm
Passage of the bill through the Legislative Council
The Legislative Council passed the Bill on 4 December 2008. There were, however, a number of
amendments made to the Bill. These included:
Clause 40 - Surrogacy
 Amendments include that the surrogate mother’s egg will not be used in the conception
of the child, and that the surrogate mother has previously carried a pregnancy and given
birth to a live child.
 Clarification of the matters to be covered in the counselling about Surrogacy
arrangements to include the consequences if: the commissioning parents decide not to
accept the child once he or she is born; and the consequences if the surrogate mother
refuses to relinquish the child to the commissioning parents.
Clause 153 – Donor births
If the Registrar of births, deaths and marriages is informed that a baby is donor conceived, the
Registrar is to record a note on the register of that fact. The Registrar will attach an addendum to
the birth certificate indicating that further information is available about that person.
Hansard
To read the speeches made on this Bill by Members of Parliament, go to:
www.parliament.vic.gov.au, click on Hansard and select the House and date from the list. The
debates in the Legislative Council on 4 December are interesting, because they address the
amendments to the Bill.
Formal processes for change
The proposed laws are based on the recommendations of the Victorian Law Reform Commission,
after extensive consultation. A summary of the VLRC’s report can be read here ART
reforms\VLRC final report.pdf
page 7
7
VCE LEGAL STUDIES
Unit
3
Informal processes for change
As with the Abortion Law Reform Act 2008, there was significant involvement of individuals and
groups in trying to influence the Members. For details of the activities of some of these groups, go
to the following websites. In particular, the Rainbow Families Council references give an excellent
overview of the specific strategies used in this campaign.
 Australian Christian Lobby
www.acl.org.au
 Rainbow Families Council
www.rainbowfamilies.org.au/pages/campaigns.php
Recommended reading
 Fertility bill sparks emotional debate
 Sunday Herald Sun
 Evonne Barry
 October 12, 2008
 www.news.com.au/heraldsun/story/0,21985,24480434-5006016,00.html
page 8
8