MAJORITY POSITION
Transparent Advertising and Notification of
Pregnancy Counselling Services Bill 2005
A majority
of the Committee (Senators Humphries, Barnett and Polley) feels that the
evidence presented to the Inquiry casts doubt over the efficacy and effect of
the Transparent Advertising and Notification of Pregnancy Counselling Services
Bill 2005.
In
particular, the majority feels the Inquiry raised serious questions about the
constitutional validity of significant parts of the Bill, especially its attempt
to regulate non-broadcast advertising by non-corporations which are not engaged
in interstate or international trade or commerce. Majority Senators feel it is
irresponsible to recommend that the Senate purport to pass into law a Bill
which may fail, in whole or in part, to be valid. Those Senators suggest the Senate should
make its own inquiries regarding the constitutionality of the Bill before
proceeding to legislate.
A great
deal of evidence was received regarding the terminology of the Bill, especially
the terms 'non-directive' and 'referral'. The proponent of the Bill has
accepted there are serious objections to those terms, and has intimated that
amendments may be proposed to address these concerns. Majority Senators,
however, see the concepts underpinning these terms as critical to the structure
of the Bill. The terms 'non-directive' and 'referral', for example, are used to
differentiate two types of pregnancy counselling services, which are then
treated differently under the various provisions of the Bill. The scope of
these terms will determine the impact of the Bill on counselling services,
health service providers, advertisers and others in the community. Majority
Senators cannot support the contention that these issues are secondary matters
that can be 'sorted out' during the committee stage of the Bill’s
consideration.
There are
a number of concerns expressed by witnesses about provisions in the Bill––for
example, the magnitude of fines imposed on not-for-profit organisations for
misrepresenting the nature of their services––which may be capable of amendment
as the Bill progresses through the Parliament. Majority Senators, however, see
the provisions in question as going to the heart, not the periphery, of the
legislative scheme proposed, and as such believe the Bill in this form should
not be supported at the Second Reading stage.
Clause 7
of the Bill prohibits pregnancy counselling services which do not 'refer' for
abortions from advertising their services in the 24 Hour Health and Help section
of telephone directories, even where an advertisement carries the notification
required under clause 6. The majority
rejects such a provision as discriminatory and notes that, while Senator Stott
Despoja has indicated that the provision––like a number of others––may be
amended, its presence in the Bill adds further to the uncertainty about the
final direction of the legislation.
Overall
the Bill seeks, in the majority’s opinion, to hamper the efforts of those
pregnancy counselling services which do not refer for abortion by imposing
specific requirements for transparency without imposing equivalent provisions
on other services, such as those linked to abortion providers.
It appears
that the effect of the Bill would be to increase the likelihood of ready referral
for abortion. This is contrary to good public policy which should reflect the
widespread consensus, evident in the Parliament and elsewhere at the time the
RU486 legislation was considered, that there are too many abortions in
Australia.
Rather than
hindering the work of those pregnancy counselling services which offer support
to women facing a crisis pregnancy to choose an alternative to abortion we
should be grateful for this community service, largely carried out by
volunteers. The Commonwealth should be finding ways to foster and enhance this
work, not undermine it.
Recommendation
That
the Transparent Advertising and Notification of Pregnancy Counselling Services
Bill 2005 not be supported.
Senator Gary Humphries
Chairman
LP,
Australian Capital Territory
Senator Guy Barnett
LP, Tasmania
Senator
Helen Polley
ALP,
Tasmania
August 2006
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