Chapter 1Introduction
1.1On 9February2023, the Senate referred the provisions of the Human Rights (Children Born Alive Protection) Bill 2022 (the bill) to the Senate Community Affairs Legislation Committee (the committee) for inquiry and report by 1July2023. On 16June2023, the Senate granted an extension of time for reporting until31August2023.
Structure of the report
1.2This report contains two chapters. This chapter sets out:
the purpose of the bill;
background information relating to live births following pregnancy termination in Australia;
an overview of the bill’s key provisions; and
general information outlining the conduct of the inquiry and other committees’ consideration of the bill.
1.3Chapter 2 sets out the views on the bill and concludes with the committee’s view.
Background
1.4Pregnancy termination is legal in every Australian state and territory. Each jurisdiction has its own laws pertaining to the number of weeks of gestation at which more than one doctor must approve the termination procedure.
1.5In most states and territories, clinical practice guidelines direct the medical care provided in the rare instance that signs of life are shown following pregnancy termination. These guidelines include providing palliative care, such as warmth and comfort. In South Australia and New South Wales, legal requirements to provide clinically safe care appropriate to the person’s medical condition are further codified.
Purpose of the bill
1.6In his second reading speech, SenatortheHonMatthewCanavan explained that the bill ‘seeks to protect the most vulnerable in our society.’
1.7The bill proposes to codify the duty and conduct of medical professionals to an infant showing signs of life following a pregnancy termination as no different to that due to any infant born under different circumstances. It also seeks to create an offence for practitioners who contravene this duty.
Provisions of the bill
1.8The bill includes three parts:
Part 1 – Preliminary
Part 2 – Children born alive are persons
Part 3 – Duty of health practitioners
1.9Key provisions of each part are outlined below.
Part 1 – Preliminary
1.10Part 1 contains preliminary material and defines key terms used in the bill.
1.11Clause 6 provides that the bill is not intended to exclude or limit the operation of a State or Territory law that is capable of operating concurrently with this bill.
Part 2 – Children born alive are persons
1.12This part specifically defines a child born alive as a person for the purposes of Commonwealth law.
Part 3 – Duty of health practitioners
1.13Part 3 forms the core of the bill, outlining duties of health practitioners in relation to medical care and record keeping, and the proposed offence for contravention of these duties.
1.14The bill provides that health practitioners have a duty to provide medical care or treatment to a child born alive following pregnancy termination, just as they do in relation to a child born in other circumstances. Medical care or treatment is specified to include palliative care. This duty to provide medical care would apply ‘despite anything to the contrary in professional standards or guidelines that apply to health practitioners.’
1.15A person who contravenes this duty would be subject to disciplinary action of the relevant health practitioner registration boards and liable to prosecution. Specifically, a person would commit an offence if:
the person is a health practitioner; and
a child is born alive; and
the health practitioner owes a duty to provide medical care or treatment to the child; and
the health practitioner engages in conduct; and
the health practitioner’s conduct contravenes that duty.
1.16The mother of the child would be explicitly exempt from prosecution for this offence.
1.17Health practitioners would be further required to report births of children born alive following pregnancy terminations, with the purpose of enabling production of statistics.
Compatibility with human rights
1.18The Explanatory Memorandum states that the bill engages the following human rights instruments:
Universal Declaration of Human Rights, Article 3;
International Covenant on Civil and Political Rights, Article 6(1); and
Convention on the Rights of the Child, Articles 6 and 24.
1.19The Explanatory Memorandum further explains the bill ‘enhances human rights by ensuring that the right to life and healthcare is protected for children born alive.’
1.20The committee received evidence from legal experts that the bill is not consistent with human rights; this is discussed in Chapter 2.
Consideration by other committees
1.21The Senate Standing Committee for the Scrutiny of Bills made no comment on the bill.
1.22The Parliamentary Joint Committee on Human Rights noted in their report that:
… this private senators' bill appears to engage and may limit human rights. Should this bill proceed to further stages of debate, the committee may request further information from the senators as to the human rights compatibility of the bill.
Conduct of the inquiry
1.23Details of the inquiry were made available on the committee’s website. The committee also contacted various organisations and individuals to invite written submissions by 10March2023. To further facilitate participation in the inquiry, the committee also accepted late submissions.
Submissions and public hearings
1.24The committee has published 154 submissions, listed at Appendix 1.
1.25The inquiry also received a large volume of material associated with campaigns, outlined in Appendix 2. Samples of each coordinated campaign and form letter have been published on the committee’s website, alongside a cover page for each, summarising the key topics raised as well as the respective numbers received.
1.26The committee held one public hearing in Canberra on 8June2023. Witnesses are listed at Appendix 3, and the transcript is available on the committee’s website.
Terminology
1.27In this report, the spelling ‘fetus’ and its derivatives are used, consistent with language used in Australian medical literature and practice guidelines.
Acknowledgement
1.28The committee thanks the organisations and individuals that made submissions for their interest in and contributions to the inquiry.
Hansard references
1.29In this report, references to Committee Hansard are to proof transcripts. Page numbers may vary between proof and official transcripts.