Minority
Report - Transparent Advertising and Notification of
Pregnancy Counselling Services Bill 2005
- Senator Stott Despoja
- Senator Moore
- Senator Nettle
- Senator Webber
- Senator Allison
- Senator C Brown
Table of Contents
1. Background
2. Summary
2.1 Key
conclusions
2.2 Key
Findings
3. Need for the
Bill
4. Terminology
4.1 Non-directive
4.2
Refer
5. Misinterpretation
of the Bill
5.1 Background
5.2 Bill
forces pregnancy counselling services to refer for abortion
5.3 Bill
forces counsellors to participate in an "illegal act"
5.4 Bill
favours Pro-choice pregnancy counselling services
6. Constitutionality
of the Bill
6.1 Constitutional basis of the
bill
6.2
Role for the States
7. 24-Hour Pregnancy
Help pages
8. Other
concerns to arise from the hearings
8.1 Alleged breast cancer abortion link
8.2 International
examples of regulation
8.3 Implementation
of pregnancy counselling standards
9. Sensis Concerns
10. Recommendation
1. Background:
The aim of Transparent
Advertising and Notification of Pregnancy Counselling Services Bill 2005 (to
be referred to as ‘the bill’ from here on after) is to regulate pregnancy counselling
services to prevent misleading or deceptive advertising or notification of
pregnancy counselling services.
On the recommendation of the Selection of Bills Committee,
the bill was referred to the Community Affairs Legislation Committee for further
examination into the adequacy of the legislation in improving the regulation of
pregnancy counselling services. The
Committee was also required to determine whether counselling provided by
Government funded pregnancy counselling services is objective, non-directive
and includes information on all three pregnancy counselling options.
This bill does not discriminate against any particular
pregnancy counselling service, whether anti-choice or pro-choice.
It is designed to implement the
necessary regulatory measures to prevent the misleading and deceptive
advertising of pregnancy counselling services. It will not force services that
have a philosophical opposition to abortion to refer women to termination
clinics, but as the legislation clearly sets out, it requires these services to
advertise if they do not provide that particular service, so women can be fully
informed.
However, Dr Sally
Cockburn argued in her opening statement to
the Committee that the focus should be on the rights of Australian women to
receive non-directive impartial and evidence-based information on all three
pregnancy options. Dr
Cockburn argued that:
Much of the focus has
been on the rights of service providers.
SH&FPA, however, believes that focus should be on the rights of
Australian women and their support persons.[187]
2. Summary:
This Minority
report analyses some of the key debates to come out of the Committee inquiry
into the bill.
The
Committee process was an essential step in bringing a full and ongoing debate about
the issue of transparency in advertising of pregnancy counselling services to
the Federal Parliament.
Unlike
organisations which charge for the services they provide, and are thus subject
to the Trade Practices Act, non-fee charging pregnancy counselling
organisations are not regulated in any way to prevent them from engaging in
deceptive behaviour, or misleading advertising.
2.1 The key conclusions:
This bill was
introduced into the Senate “to prohibit misleading and deceptive advertising
and notification of pregnancy counselling services; promote transparency and
full choice in the notification and advertising of pregnancy counselling
services; improve public health; and minimise the difficulties associated with
obtaining advice to deal with unplanned pregnancy.”[188]
Considering most pregnancy counselling services are not
subject to the Trade Practices Act because they usually do not charge for the
information or services they provide, this bill “essentially makes pregnancy
counselling services subject to the same laws regarding misleading advertising
as organisations which are engaged in trade or commerce.”[189]
Evidence presented during the committee process further
highlighted the need for a piece of legislation of this kind to protect
Australian women from accessing false and misleading pregnancy counselling
services. This is detailed in section 3
of the report.
The introduction of this bill is essential in protecting the
rights of women, and preventing pregnancy counselling services that do not provide
balanced information about, offer, or refer for all three options, from advertising
in ways that suggest otherwise. This Bill, in
effect, will hold pregnancy counselling services accountable for the
advertising and information that they provide, creating a safety mechanism
protecting the fundamental right for women to have access to non-directive
counselling on all three pregnancy options: keeping the baby, adoption, or
abortion, if they choose.
The bill is the best way so far to prevent pregnancy
counselling services from advertising services for which they do not provide, and
which will ensure they become accountable for the information and services that
they do provide.
This bill should be seen as the vital first step in the
legislative and policy debate about pregnancy counselling services in Australia,
and the related issues and concerns to arise from the committee hearings.
2.2 The key findings:
- The public
hearings highlighted the misinterpretation of the bill, with anti-choice
organisations and individuals arguing that this piece of legislation:
- forces
pregnancy counsellors to participate in an illegal act
- forces
pregnancy counselling services to provide referrals for an abortion
- affects
the amount of women calling/visiting these counselling services, by ‘forcing’ them to outline what they do/do not refer/advise on
- will
shut down or decrease funding to certain services
- fails
to regulate ‘pro-choice’ counselling services due to the biased nature of
the bill
- Highlighted
the need to incorporate a definition of the term ‘refer’ in the bill
- Misunderstanding
of the term ‘refer’
- Whether
or not it is only a medical term
- Highlighted the need to adequately address the
definition of non-directive counselling
- Inadequacy
of the Department of Health and Ageing definition compared to the definition
provided in the bill
- Relevant
suggestions to address this issue
- Highlighted the concerns over the 24-hour
pregnancy counselling listing in the White
Pages
- Raised
other concerns outside the content of the bill
- Misinformation
about abortion risks e.g. alleged link between breast cancer and abortion
- What
medical information pregnancy counselling service providers should base
their research on (i.e. W.H.O or N.H.M.R.C)
- Counselling
standards
- The
report concludes that this piece of legislation is essential in protecting
women from misleading advertising, and highlights that further debate and
discussion about other related pregnancy counselling concerns is required
in the Federal Parliament;
We welcome and appreciate the participation and contribution
of medical practitioners, pregnancy counselling services, and individuals all
of whom provided the committee with essential evidence in the debate about this
bill and other related issues.
3. Need for the Bill
Senator Stott
Despoja introduced this Private Member’s Bill
on June 23, 2005, in
response to a number of concerns “about the way one pregnancy counselling
service, Pregnancy Counselling Australia, was listed in the White Pages.” These concerns are outlined in Senator
Stott Despoja’s
second reading speech introducing the bill, where she stated that:
“my increasing awareness of a number of other pregnancy
counselling services which like Pregnancy Counselling Australia, do not refer
for terminations yet do not mention this in their advertising and notification
material, has encouraged me to continue to push for greater transparency in
this area, to ensure women are able to make informed choices about who they
contact for information when they are deciding whether they can continue with a
pregnancy, are seeking support in continuing their pregnancy, or have decided
to have an abortion.”[190]
The
urgency of this issue was highlighted in March 2006 when the Federal Government
announced it would allocate $51 million over the next four years to establish a
National Pregnancy Support Telephone Helpline, and introduce a Medicare rebate
for pregnancy counselling. Service
providers with any connection to abortion clinics are precluded from accessing
the Medicare rebate for their patients, while those groups with religious or
philosophical objections to abortion will be eligible.
In
response to Questions on Notice, The Department of Health and Aging confirmed
that GPs associated with termination clinics would be excluded from the
accessing the item stating
-
The service is
non-directive
-
Practitioners and
allied health professionals claiming the item are not associated with clinics
that provide termination services
-
Practitioners
cannot also provide termination services for the periods that they are claiming
the counselling item.[191]
Anecdotal evidence presented during the inquiry highlighted
the need for the regulation of pregnancy counselling services. A document tabled by the Pregnancy Advisory
Centre in Adelaide, highlighted the
misleading and deceptive information women have been receiving.
One woman reported being told that if she terminated her
pregnancy it was;
Killing the
baby...Also said that the Government would give them money – a ‘few thousand.’[192]
Another woman
reported
They told me I was at increased risk of breast cancer
later in life and that I was also at risk of being more infertile. They kept saying ‘but there is help through
the Government financially, there are childcare benefits, we will give you a
cot and baby clothes...’ they were really pushing and pressuring me to having a
child, I felt bullied.[193]
Dr
Susie Allanson,
a clinical psychologist for the Fertility Control Clinic provided the Committee
with a number of case studies from women who had come to the FCC following a
traumatic counselling experience. One
woman reported;
My boyfriend and I went to
a pregnancy counselling service in [a country town]. They showed us a film that was really
frightening showing the baby trying to get away from the instruments the doctor
was using. Then they told us how bad it
was to have an abortion and I would never be able to have any children. They said my boyfriend would leave me if I
had an abortion. I said my parents would
kill me and kick me out if they found out I was pregnant. They said they would give me baby clothes and
somewhere to stay till I had the baby. I
said I wanted to finish school and I had to get an abortion. I did not want to live with strangers or
adopt the baby out. I was so furious and
scared after seeing them.[194]
The
bill seeks to ensure that pregnancy counselling organisations that do not refer
for terminations declare this, so women seeking advice on whether to continue a
pregnancy know what sort of organisation they are contacting.
Ms
Cait Calcutt
from Children by Choice reinforced this point, arguing that the intent of the
bill “is not about outlawing different types of services but about recognising
the different types of pregnancy counselling services in Australia. This bill is about ensuring that we represent
ourselves accurately to women who may be seeking our services.”[195]
The
need for greater transparency in pregnancy counselling services was further reinforced
by Dr Haikerwal. The AMA highlighted the fact that coercion
towards a particular reproductive choice is simply unacceptable;
Whilst advocating for a
reduction in Australia’s abortion rate through acceptable interventions, the
AMA feels that all women must be able to access non-directional pregnancy
counselling services at any time. We
support the principles behind the bill-namely, that advertising and
notification for pregnancy counselling services must not be misleading or
deceptive.”[196]
4. Terminology
Although witnesses generally supported the need for transparent
advertising, there was debate about some of the terminology used in the bill
including:
While there is a clear need for the implementation of
legislation to regulate pregnancy counselling services in Australia,
a theme to arise from the public hearings, highlighted how sections of the bill
have been misinterpreted by anti-choice services.
4.1 Non-directive
As mentioned in the Chair’s report, the term “non-directive”
received particular attention throughout the Committee process.
Section 3 of the bill defines “non-directive” pregnancy
counselling services as:
A service that offers
counselling, information services, referrals and support on all three pregnancy
options being:
- raising the child; or
- adoption; or
- termination of pregnancy
and will provide referrals
to termination of pregnancy services where requested.[197]
Brigid Coombe,
Director of the Pregnancy Advisory Centre, provided the Committee with her
understanding of the term non-directive.
She stated during her opening address that:
The definition given in the
bill of ‘non-directive counselling’ does not, in my view, describe a
counselling methodology but rather a service approach. Moreover, it is an appropriate approach as it
responds to the variation in women’s needs when contacting such a service. Women often require information about all of
the options that they may be considering and expect that they get this from a
service which advertises to provide help for them in their crisis. Accurate information is at times a crucial
part of women’s informed and responsible decision-making process. It is women’s needs that should be central to
appropriate service provision.[198]
Dr Pesce,
from the AMA stated during the hearing in Canberra,
that:
non-directional would
mean...that once a patient indicates that her preference seems to be for a
particular course or approach to solve a problem, you should be able to support
her in that decision...I think that, if you want to provide a proper service, you
are obliged to follow the path that the patient chooses for herself as you
advise her on all her options.[199]
Dr Susie
Allanson, from the Fertility Control Clinic
in Melbourne
argued that the term "non-directive", as defined in Senator
Stott Despoja’s
bill, has been confused due to the Department of Health and Ageing’s
understanding of the definition.
...it appears that the
Federal Department of Health and Aging believes that AFPSS is providing
“non-directional” pregnancy counselling.
The Department’s view raises the difficult issue of language and how
anti-choice organizations may commandeer pro-choice language to hide their
actual practice and philosophy. Because
of the problem in discriminating between false providers versus pro-choice
pregnancy counselling, pro-choice services have tried to more clearly
articulate the concerns and differences between anti-choice and ethical
counselling by emphasising certain language such as “non-directional”,
“woman-centred”, “options”, and “pro-choice”.
Unfortunately, anti-choice rhetoric can subsequently claim this language
as its own and the confusion for the public continues.[200]
In her opening statement to the Committee, The Honourable
Carolyn Pickles, from the Children, Youth and Women’s Health Service in South
Australia argued that non-directive counselling is an
important aspect of pregnancy counselling.
Pregnancy counselling
services should be non-directive. The
experience reported by some women to our staff at Women’s Health Statewide
indicates that they have been provided with factually incorrect information,
such as exaggerated risks of harm such as breast cancer...Women who are
distressed may not, may choose not, to discuss their decision with family or
friends, and rely on impartial counselling services to assist them.[201]
This statement further indicates the general understanding
of the term "non-directive" in relation to the bill.
When questioned by one Senator as to whether Children by
Choice offer advice on all three options, Coordinator, Cait
Calcutt, stated:
We offer counselling, information
and referral around all three options of an unplanned pregnancy. The aim of our service is to facilitate a
woman to make the decision that she believes is best for her. But, if she comes to us and she has decided
that she wants a termination of pregnancy and she is seeking information in
relation to termination of pregnancy, we are happy to provide her with that,
and the same goes if she has decided upon adoption or continuing with the
pregnancy and parenting the child.[202]
Non-directive counselling, under the definition of the
bill, requires counsellors to provide information on all three pregnancy
options, and refer where necessary. The
meaning of refer in this context has resulted in much debate from those who
oppose the bill.
4.2 Refer
We acknowledge that a specific definition of the term
‘referral’ is needed in Part 1 section 3 of the bill, the term ‘refer’ is
commonly used as a general term in the daily fixtures of life. However, the
term refer is defined as as “To direct
for information or for anything required”[203]
Opponents of the bill claim that pregnancy counselling
services do not have the authority to ‘refer’, as this is a medical term, and
only Medical Practitioners can provide referrals. This claim, however,
was refuted by the Australian Medical Association, with Dr
Pesce arguing that:
You can refer to Hansard, and there is a more general
meaning of the word...I am a bit frustrated that a lot of energy may be spent on
this. It would be better to call it
‘assisting the woman in obtaining the relevant service that she requires.’ If you do not want to call it a ‘referral’,
then call it ‘assisting’. If you don’t
want to assist someone then you should probably say that. We could get stuck on the concept of
‘referral’, which has a specific meaning in the MBS structure and with Doctors,
but the term is used all the time. If I
were trying to do my job properly and a patient came to me and asked me for
something that I could not provide then it would be my obligation to assist her
in obtaining that somewhere else, whether that includes a medical referral or a
referral to her spiritual counsellor.[204]
The frustration with the medicalisation of such a term was
evident during the public hearings, with Dr
Leslie Cannold
from Reproductive Choice Australia stating:
I feel that all this
quibbling about the word ‘referral’ is a way of ducking the main issue. Do we support transparency or do we not? If we do, maybe we can find another word. Andrew Pesce in the Canberra hearings used ‘assist women to’, if we are going to
have such a hard time with the word ‘referral’.
This is not really a major obstacle to having this bill go into law.[205]
Ms Margaret
Kirkby, from the Bessie Smyth Foundation
reinforced this frustration in her opening statement to the Committee in Sydney,
stating:
We would reject the view
that referral to an abortion provider is solely the prerogative of a
doctor. If you place meeting the needs
of women at the centre of your service delivery, you have to have referral
information about a wide range of services – and not just where to get an
abortion or where to get support to continue a pregnancy or about adoption...We
are very conscious about wasting women’s time if you do not give them decent
referral information.[206]
A large proportion of the debate at the final public
hearing in Adelaide focussed on defining
contentious terminology within the bill.
Senator Moore reiterated
the frustration about the time spent on this debate, and asked both the
Coalition for Women’s Right to Choose, and the Women’s Services Network of SA
to outline their understanding of the term referral.
Senator Moore: So from your
perspective, working with women’s services, what connotation does the verb ‘to
refer’ conjure up for you in the draft legislation, when it says
‘non-directional?’
Dr Ripper: My experience
would be that in everyday speech people use the word ‘refer’ to mean ‘passing
on to’, in a very general and generic way; in the way that the AMA
clarified. Inside a medical consultation
it may well have a different meaning but that is not what we are speaking
about...
Ms Hayes: From the
Women’s Services Network perspective, it would be in common parlance that we
would use the word ‘refer’ to provide a woman with information about a service
and refer her to that service and it is not in a strict way.[207]
Ms Coombe,
argued in her opening statement that referral in the context of the bill is not
limited to the
Definition
of referral by a doctor to a medical specialist...Referral also encompasses the
provision of information about what services are available to meet a person’s
specific need and may include facilitating links to assist that person to get
to that service.
I
would argue that the need to say a service cannot provide a woman with a
referral, as in information about where to go to access the service – because
only a doctor can do that – is in fact a rationalisation for services which are
placing their needs above that of the client – that is, the service is solving
their conflict of interest by creating an obstacle for women to navigate.[208]
5. Misinterpretation
of Bill
5.1 Background:
Anti-choice organisations and individuals argued incorrectly
that the bill “intends to put out of business any pregnancy counselling service
which will not refer for abortion...such an attempt to suppress community groups
who do not share the permissive views on abortion held by the framers of this
bill is surely a misuse of parliamentary power...”[209].
This
bill does not disadvantage so-called ‘pro-life’ pregnancy counselling services
as suggested, by oppents of the bill, but rather it is designed to prevent the
misleading and deceptive advertising of these services. This is a gross misinterpretation of the bill.
The
bill ensures that pregnancy counselling organisations which do not refer for
terminations declare this, so women seeking advice on whether to continue a
pregnancy whether the organisation provides information and referrals on all
three pregnancy options.
Point 1.139 of the Chair's report highlights the concerns
raised by Festival of Light regarding the penalties imposed, arguing that:
Because corporations are
often profit-making organisations, whereas the small organisations we describe
are not corporations, but the same penalty would apply to them though they are
not corporations.[210]
In response to this argument by Mr
d'Lima, his colleague Ms
Phillips, stated:
It would bankrupt them because Birthline has an annual
budget of $55,000. If they were to be
fined $200, 000-
Senator
Stott Despoja: I am sure that Birthline
are not going to engage in misleading and deceptive practices.[211]
The
penalty units have been incorporated to enforce and promote the importance of
non-directive and truthful advertising and mirror those contained in the Trade
Practice Act. It is not designed to
'hamper' any particular counselling service, and indeed is only payable if an
organisation is providing misleading and deceptive advertising. Rather it is
intended to promote transparency transparent advertising and notification of
pregnancy counselling services. Only
organisations that breach the rules will be penalised.
5.2 The
Bill forces pregnancy counselling services to
refer for abortion:
A
common misconception that arised in the public hearings and the submissions, by
opponents of the bill was that this bill, if successful, would “force” all
pregnancy counselling services, regardless of their pro/anti choice stance, to
provide referrals for termination.
Dr
Nicholas Tonti-Filipini
highlighted this misconception arguing that:
I do not think it is appropriate to force
pregnancy counselling services into a medical model by requiring it to refer
for abortion.[212]
- Section 6(1) of the Transparent Advertising and
Notification of Pregnancy Counselling Services Bill 2005 states
Any
person that advertises or notifies a pregnancy counselling service that does
not provide referrals for terminations of pregnancy must include in the
advertising or notification material a statement that “This service does not
provide referrals for terminations of pregnancy” or a like statement.
In
reference to Section 6(1) of the bill, Ms
Roselyn Phillips,
of The Festival of Light stated:
“The bill is specifically
penalising pregnancy counselling services which do not provide referrals for
abortions if they do not state that in their advertisements, whereas it makes
no mention of counselling agencies which do refer for abortions but do not
provide ongoing support for women who choose to keep their babies. It does not require them to put that in the
ad, so it is a very much biased bill.”[213]
This is a clear example of how the bill has been misinterpreted.
The legislation simply does not ‘force’ pregnancy
counselling services to refer for abortion. It does require services to be upfront about
whether or not they offer or advise on all three options to women seeking
advice.
Debate over whether or not the bill would make
pregnancy counselling services refer for
terminations, was a common theme of attack from anti-choice advocates.
In his submission to the Committee, Mr
Charles Francis
claimed the bill “proceeds on the entirely erroneous principle that the
alternative possibility of referring a woman for an abortion should be an
integral part of all pregnancy counselling.”[214]
5.3 Bill forces
counsellors to participate in an "illegal act":
Considering this bill seeks to enshrine in law
transparency in advertising, the claim made by opponents of the bill that this
piece of legislation would force them to participate in an "illegal"
act is an extraordinary example of misinterpretation. Pregnancy Help Australia claim in their
submission to the Committee that “abortion remains illegal in most states in Australia. Therefore, in these situations, the Bill
requires the counsellor to be complicit in an illegal act.”[215]
Upon questioning, Senator Stott
Despoja asked if Pregnancy Help Australia, would
consider their statement arguing that:
It does not loosen or
change the law in any way. In fact,
there is nothing to suggest that counsellors who are operating now would
operate any differently as a consequence of this legislation – that is
suggesting that counsellors are acting illegally now...I recognise that you might
have different views on some issues but I urge you to reconsider that
statement.[216]
The misinterpretation of this bill is one of many
examples that stemmins from an anti-choice philosophy rather than being
grounded in the actual legal and medical realities and facts.
5.4 Bill "favours"
Pro-choice pregnancy counselling services:
The argument that the bill favours pro-choice
counselling services was raised spuriously by anti-choice services through the
Committee process. Considering the bill
is designed only to promote transparency in advertising, this argument is again
an example of how this piece of legislation has been wittingly misinterpreted.
President of the ACT Right To Life Association, Ms
Kath Woolf
outlined in her opening statement to the Committee that this:
bill is a transparent
attempt, we believe, to severely disadvantage those pregnancy counselling services
which assist women with real alternatives to abortion...The bill’s provisions
serve, first, to entrench inappropriately in legislation a theory of
counselling that is based on misunderstanding of both the theory and practice
of counselling.[217]
During the Committee hearing in Sydney,
Senator Moore highlighted
that the intent of the bill is “to ensure that any woman in the community or
her family, when seeking information about what is available to her if she is
pregnant, will have an open choice when looking at any of the advertising
material.” This statement reinforces the
simple fact that the bill requires only, that pregnancy counselling services
are upfront and clear about what services they do and do not provide. It does not force all pregnancy counselling
services to refer for abortion, as argued by anti-choice individuals and
services.
Those opposed to the bill argued that the legislation
was both biased and unfair on services that do not provide referrals. Festival of Light claimed in their submission
that:
The Bill assumes that it is good public policy to favour only those pregnancy
counselling services which “provide referrals to termination of pregnancy
services where requested.”[218]
If so - called “pro-life” pregnancy counselling services are
proud of their stance, then advertising that they do not refer for terminations
should not be an issue.
This bill is not a debate about the legality of abortion it
is about providing women with upfront information about the services that they
are contacting for pregnancy counselling.
When questioned on how the bill would ‘favour’ only
pro-choice pregnancy counselling services, Festival of Light claimed:
Because
it would provide penalties only for those pregnancy counselling organisations
which do not directly refer for abortion and no penalties for agencies like the
Pregnancy Advisory Centre in Woodville which does not provide ongoing support
for women who want to continue their pregnancy.[219]
In response to this accusation, Senator
Stott Despoja
stated:
If
they advertised as a non-directive counselling service and they failed to
provide those three options, you bet I’d be happy and they would be guilty
under this legislation! It applies
across the board.[220]
While there
have been suggestions that some pregnancy counselling services may be covered
by the Trade Practices Act because they charge for their services,
Graeme Samuel Chairman of the ACCC argued:
The fact that the advertising was paid for does not
change the character of the conduct to bring it within the "trade and
commerce" pre-condition. (An example was a case where Canberra Airport paid for
newspaper advertising in relation to a zoning decision - this was held not to
be conduct in trade or commerce.)[221]
Upon questioning Right to Life Australia Inc., Senator
Moore asked the President, Ms
Margaret Tighe:
Can you tell us where
in the draft legislation your services are being threatened?
Mrs Tighe: That is a good question Senator. I believe they are not, actually, because of
the response from the ACCC...
Senator Stott Despoja: But there is
nothing in the bill designed to target or close down the organisation.
Mrs Tighe:...I believe it is important that we stand up against
this type of legislation, which, really, is only aimed, I believe, at closing
all avenues for those women who are ambivalent about whether or not they have
an abortion...
Senator Moore: But where in
the legislation is your work being threatened?
Mrs Wells: In the
legislation, I cannot see anything in particular...[222]
This Hansard passage is evidence of the
misinterpretation and misunderstanding of the bill. Right to Life Australia
and Pregnancy Counselling Australia admit that no where in this proposed piece
of legislation does it infer that pro-life pregnancy counselling services will
be threatened.
Considering this was an argument put forward during
the Committee process, it is important to note that not only does this bill
only require pregnancy counselling services to be upfront about the services
they provide, but anti-choice services admit that this legislation does not
threaten the existence of their organisations.
6. Constitutionality
of bill
6.1 Constitutional
basis for the bill
The Chair's report raises the issue of the
constitutional validity of the bill.
Despite this issue being raised by opponents of the
bill, obviously it is not the role of nor is it appropriate for a Senate Committee to determine constitutional validity
of a bill. This is a matter for the High
Court.
Nonetheless, we acknowledge the important and various
interpretations of constitutional powers but believe there are strong grounds n
which to proceed with such a bill.
One of the reasons the bill was drafted as a
stand-alone piece of legislation was in an attempt to by pass some of the
evident constitutional matters that arise.
The drafting of the bill proceeded on the basis that:
"The statute books already have the Tobacco Advertising Prohibition Act
1992 which has operated constitutionally since 1992 and the Diasability
Discrimination Act 1992 – the Act which I used as a precedent – which has also
operated constitutionally for 14 years, however the exact nature and context of
the advertising must remain within the trade practices power"
We still believe that there
are several heads of power that would support the bill. The most likely section 51(v) – broadcasting
power, which can be used to regulate advertising by radio, newspaper, internet,
TV, telephone etc. This should support a
law which seeks to regulate the manner in which services are advised such as
clauses 5 and 6 of the Bill.
Senator Webber
requested additional information from Mr
Cleaver Elliot,Clerk
Assistant (Procedure) regarding constitutional issues, Mr
Elliott stated:
As I have mentioned
before there is only one test on constitutionality – it is the one which the
Federal Government is undergoing at the moment with its WorkChoices legislation
before the High Court of Australia. It
is a most common argument put to the Senate, the House and in our community
that one should not proceed because something is not constitutional (any
Hansard word search will get you scores of hits) yet government's still proceed
in the face of such risk and criticism in their endeavour to implement new
public policy.
I stand by the bill's
drafting and I do not see anything in the evidence presented so far that would
change my mind. Robust political debate
and evidence has been given which may cause the text of the bill to be
adjusted. This is routine legislative
procedure. While some passing cursory policy
comment has been given in relation to the constitutionality of the bill, I have
seen no authoritative legal opinion with supporting authority which has
questioned the constitutionality of the bill.[223]
In response to a query from Senator Barnett,
regarding constitutionality, Mr Elliot
responded:
It is important that
you be advised that a Senate committee has no
jurisdiction to determine the constitutionality or otherwise of a bill.
If for example a
committee in considering a bill were to determine as a threshold issue that a
bill is unconstitutional and that is a reason for the committee to not further
consider it, that action by the committee would itself be unconstitutional –
(although not justiciable because it could not be brought before the court).
Mr Elliot
also stated:
It would appear that
some confusion has developed here to lead the committee away from its
responsibilities and in to areas where it has neither responsibility nor
jurisdiction.
A committee which
purported to exercise authority in accordance
with an area of the Constitution from which it is excluded, and did not
exercise authority in an area of the Constitution where it has exclusive
authority, would be derelict in its duty.[224]
6.2 Role for
the States
Mr Charles
Frances in his submission argued that:
It
seems to me that the requirements of the Bill in so far as it seeks to deal
with those who provide counselling services free is probably beyond the
constitutional powers of the Commonwealth and is a matter for the States only.[225]
Mr Francis'
view that this is a matter for the States is one that is definitely worth
pursuing.
The intent of this legislation should also be adopted
on a State-by-State basis. .This is an avenue that the supporters of this bill
will pursue.
At a minimum, this would provide a useful back up to
any federal legislation.
7.
24 hour pregnancy help pages:
Concerns that this section needs to be less restrictive
could be accommodated by allowing both non-directive pregnancy counselling
services , as per the definition in the bill, and those which do not refer for
terminations to advertise in the 24-hour listings in the White Pages.
Currently, no Government funded pro-choice dedicated
pregnancy counselling services, which means that pro-choice service is able to
provide national 24 hour
pregnancy counselling helpline. Thus, there is no service that is able to meet
Sensis' eleigibility criteria for listing in the 24-hour listing of the White
Pages.
Ms Kate
Mannix, reinforced the problem of the
current 24-hour listings in the White Pages stating:
Only non-directive services (within the
definition described in the Bill) should be legally allowed to advertise under 24 hour
emergency services. It is insulting and
degrading to mislead a person ina state of extreme
distress into believing they will receive counselling which is impartial. It is sinful (I use this word deliberately)
to use taxpayers' funds to insult and degrade such a person.[226]
The Federal Government should to address this by
allocating a similar amount of funding a pro-choice dedicated pregnancy
counselling services, to that provided to the 'pro-life' Australian
Federation of Pregnancy Support Services.
Ms Brigid
Coombe provided an example of the problem
associated with the current 24hour pages in the white pages, stating:
I would also like to give you an example
of how easy it is for women to misinterpret information describing services on
the 24-hour pages. I spoke with a woman
at the centre last week who had rung Pregnancy Counselling Australia. As you will note the White Pages, there it
states, 'Alternatives to abortion and post-abortion counselling.' I asked her why she had rung them given that
their entry states, 'Alternatives to abortion'.
She said she saw the word 'abortion' and in her anxious state thought,
'That's what I want', and rang them. She
was given inaccurate and alarming information and took a route via a hospital
gynaecologist to be reassured by accurate information and then information
about our service and found us. That
example is reason for consideration about it is that will accurately describe
to women what sort of service they are going to get.
Senator Stott Despoja raised these concerns with
Ms Coombe, asking:
If people disclose
that, as per the requirements of the bill for other advertising, in that
24-hour section: provided that it is
disclosed, would that be sufficient, or would you want an added proviso, which
is that there was a service listed in the 24-hour section of the White Pages that actually provided
referrals for terminations as well?
Ms Coombe: Yes, of course I think it would be great improvement
on services if there were also a service that was available for women that
provided comprehensive services...I have given examples. We read 'alternatives to abortion'. We understand that we would niot ring that
service. Other women do not read it that
way. Their levels of literacy and their
sophistication about this whole issue may not be what ours are.[227]
It is concerning that, women who call 12456 and ask to
be connected to a pregnancy counselling service, are offered anti-choice
services initially. Questioning Sensis about the 24-hour listing the the White
Pages, Senator Webber
informed the Committee:
Just for the
information of both the people from Sensis and the committee, I took you up on
your suggestion and spoke to a very helpful woman when I rang 12456 and asked
to be connected to a pregnancy counselling service in MKelbourne. Iwas offered Pregnancy Counselling Australia
as my first option and Pregnancy Support Service as my secong option and then
asked whether instead I wanted a more geographically specific referral – so it
is 'p' for pregnancy[228].
This example alone is
representative of the need to balance the 24-hour listing in the White
Pages.
8.
Other concerns to arise from the hearings that are not
directly related to the bill
8.1
Alleged
Breast Cancer abortion link:
During the Inquiry into the bill, there was much
debate over pregnancy counselling in general.
A disturbing theme was the alleged ‘link’ between
breast cancer and abortion. This particular
issue is one that some anti-choice pregnancy counselling services discuss and
advertise as a risk associated with terminating pregnancy.
A common question to arise during the hearings was the
basis on which anti-choice organisations base their research. The World Health
Organization (W.H.O), the National Health and Medical Research Centre
(N.H.M.R.C) or the Royal Australian and New Zealand College of Obstetricians
and Gynaecologists (RANZCOG) all support this.
Reputable medical organisations refute any link between breast cancer and
abortion, and indeed attest to elective early abortion being a very safe
procedure.
One study on which "pro-life" services and
individuals relied was a study conducted by Professor
Joel Brind,
Professor of Human Biology and Endocrinology at Brauch
College of the City University of
New York. A submission was received by Professor
Brind following the conclusion of the
Committee hearings.
Professor Brind claimed in his submission that the
issue sheet circulated by the WHO refuting the link between abortion and breast
cancer is an example of scientific misconduct.
He argues that the WHO:
Follows a summary
description of the illicit manipulations of data that resulted in false results
of no connection between abortion and breast cancer. [229]
Anti-choice counselling services have relied primarily
on one piece of evidence supporting the link between abortion and breast cancer
yet, have failed to acknowledge the studies conducted by the WHO at an
international level, and NHMRC, RANZCOG, and in the Breast Cancer Council of
Australia. These organisations state
that the available evidence suggests there to be no conclusive link between
abortion and breast cancer.
In November 2005, RANZCOG published Termination of pregnancy: A resource for health professionals. In the section on long-term risks
associated with abortion RANZCOG concluded that:
The evidence does not
support an association between termination of pregnancy and infertility,
ectopic pregnancy or breast cancer...A comprehensive analysis of data from 53
studies including 83,000 women with breast cancer concluded that ‘pregnancies
that end as a spontaneous or induced abortion do not increase a women’s risk of
developing breast cancer and that studies of breast cancer with retrospective
recording of induced abortion yielded misleading results.[230]
RANZCOG states:
In recent years there has been epidemiological debate about a
possible association between induced abortion and breast cancer. A number of
studies have looked at the influence of induced or spontaneous abortion on
breast cancer risk; however the quality of the studies varies, and results have
been inconsistent.[231]
Dr Norman Ford, director of the Caroline Chisholm
Centre for Health Ethics, himself may ‘morally disprove abortion’, but is
opposed to using fear rather than evidence when advising women of the possible
side effects of an induced abortion. Dr
Ford argues in an article published in the Chisholm Health Ethics Bulletin 2003 that there is an:
ethical imperative to provide accurate information on
the increased risk of breast cancer ... More flawless research should provide the
answers. Women have a right to know the truth, and fears that induced abortion
may not appear safe should not be allowed to obscure the facts.[232]
The so-called abortion/breast cancer link, a common
point raised by anti-choice groups and refuted by pro-choice groups during the
Committee hearings, is representative of the debate around the importance of
pregnancy counselling services drawing on reliable sources of evidence-based
information and reinforces the need for greater debate on the regulation of
such services.
In response to an article written by Senator
Stott Despoja
in The Herald Sun, Mr Francis
argued:
It
has taken the World Health Organisation decades to warn that the
contraceptive pill is a Class l carcinogen, in the same category as tobacco
and asbestos, and no doubt it may take decades for WHO, wedded to
the ideology of population control, to acknowledge the link between abortion
and breast cancer. However, women need the truth NOW, and especially on
facts about which there is no scientific dispute: that the younger a woman
is when she has her first full-term pregnancy, the lower her risk of breast
cancer. Conversely, women who have no children or only have children
after age 30 are at increased risk. One wonders why our Cancer Councils
have not used the high-profile case of a celebrity who had breast cancer,
to advise women to give priority to having babies over career,
especially when breast cancer is the major killer of pre-menopausal women, and
the third major cause of death in post-menopausal women.[233]
This quote highlights the importance of regulating
pregnancy counselling services. While we
acknowledge that there are risks associated with all surgical procedures, the alleged
abortion breast - cancer link has been refuted by all reputable medical
associations, and should therefore not be considered as a genuine risk.
Senator Judith
Adams pursued this alleged link between
abortion and breast cancer throughout the inquiry, specifically inquiring as to
what research this claim was based on.
Senator Adams: There
is a World Health Organisation document – their fact sheet 2040; this was June
2000:
Induced abortion does
not increase breast cancer risk.
So that is their
assessment.
Mrs Phillips: Yes,
and that is based largely on the Melby study which they thought was reliable
but in fact was fact.
Senator Adams: They have got
10 studies here. Anyway, thanks –
Mr d'Lima: There are
certainly many studies on both sides.
But it may well be the case that we are at the stage where smoking was
perhaps in the fifties or sixties and it may turn out to be the case that there
are grave risks linked to abortion that are yet to be more thoroughly
identified.[234]
The alleged "risks" associated with
termination, were pursued by Senator Kerry
Nettle during the Melbourne Public Hearing,
whereby the Senator stated:
I just wanted to alert
Mrs Francis to the US National Cancer Institute which in 2003
concluded that abortion and miscarriages do not increase a woman's subsequent
risk of developing breast cancer....
Mrs Francis: ...Many of the heads of the National Cancer Institute in
the United States are also connected with the abortion industry...The abortion
industry is so powerful and has so many people on the payroll of the National
Cancer Institute that they are trying to bury the abortion-breast cancer link
as much as they can.[235]
This statement is representative of the additional
concerns to arise from the Committee Inquiry.
While the medical risks associated with abortion are not directly
related to transparency in advertising, the need for the implementation of
effective pregnancy counselling regulation is more important now, than ever
before, in addition to transparent advertising legislation such as that
contained in the bill.
8.2 International examples of the regulation of
pregnancy counselling services
The Committee has requested information on whether there
are any international examples of regulation on which we could model this piece
of legislation.
While nothing to the extent of this bill has been
enforced at a national level, there are some interesting international examples
to be studied.
Affirmative legislation has been introduced into the United
States at both the federal and state
level. In 2006, Congresswoman
Carolyn Maloney
(D-NY);
...introduced a bill
intended to curb deceptive advertising of CPCs, entitled the “Stop Deceptive
Advertising in Women’s Services” Act.
The bill authorizes the Federal Trade Commission to regulate the
advertising practices of CPCs so they cannot be confused with legitimate
abortion providers or providers of abortion referrals.[236]
The bill was referred to the Committee on Energy and
Commerce on April 19 2006
for further examination.
Although steps have been taken to regulate the
advertising of pregnancy counselling services in the USA, Christina Richards,
from the Australian Reproductive Health Alliance outlined during the Committee
hearing in Canberra that:
In ensuring that
transparency, professional expertise and capacity to properly advise or refer
remain at the centre of considerations in transparent advertising and
notification of pregnancy counselling services in Australia, my hope is that
the committee is able to avoid the volatility of the US experience around this
issue, where specific facilities have been set up to look like medical clinics
but are actually centres that give false information to those seeking an
abortion.[237]
The AMA, while not supporting any particular
international model for regulating pregnancy counselling services, argued that:
pregnancy counselling services be guided by the
following principles, they must be:
-
Professional;
-
Objective and
non-directive;
-
Supportive to
women (not coercive or judgemental);
-
Committed to
protecting privacy and confidentiality; and
Transparent
(particularly in advertising) and accountable in conducting their services, so
as to ensure that the best interests of women seeking such services.[238]
8.3 Implementation of pregnancy counselling
standards
The question of enforcing pregnancy counselling
standards was a issue of concern that was raised throughout the Committee
process. Through the evidence presented
to the Committee, it became evident that a form of counselling standards
required, in addition to transparent advertising to ensure that women who
contact pregnancy counselling services, regardless of the pro/anti choice stance, receive non-directive
and truthful information.
This point was highlighted by Ms
Cait Calcutt,
from Children by Choice:
All our counsellors
and employed staff are required to have four-year degrees in psychology or
social work or a related discipline, such as behavioural science. They are also required to have counselling
experience, and they undertake training with Children by Choice in pregnancy
counselling.[239]
Following on this point, Senator Stott
Despoja asked:
Surely there is a
strong argument there for professional counselling?
Dr Grey: Senator, I think your point about accreditation is
very important. In every area it is a
question of getting standards, and I think that is where the Abortion Providers
Federation of Australasia did a lot of very good work in developing some
protocols...So moving in the direction of having some publicly debated and
acknowledged levels of accreditation and accreditation procedures would be very
good.[240]
The issue of implementing pregnancy counselling
standards was reinforced during the public hearing in Melbourne:
Senator Allison: You would endorse a system whereby that accreditation
or professionalism was expressed as part of advertising?
Dr Tonti-Filipini: I
would very much like to see that. I have
done some work in another area which is related, and that is infertility
counselling. The same problem was
occurring there. If you look at the
National Health and Research Council guidelines on reproductive technology, you
will see that they specify that somebody ahs to be appropriately qualified in a
counselling discipline.
While Dr Tonti-Filipini,
opposes the proposed legislation, his support for the implementation of
counselling standards, is representative of the problems associated with
counsellors that fail to provide non-directive and objective advice.
In response to the question of whether or not specific
counselling standards should be enforced, the Australian Medical Association
argued that:
Professionally trained
counsellors are most likely to have the high-level of skills and knowledge
required to conduct pregnancy counselling services. Certainly, the government is accountable to
the Australian public to ensure that pregnancy counselling services are staffed
by appropriately trained professionals.[241]
Dr Cannold
argued that such standards and guidelines would not substitute for transparent
in advertising and notification of pregnancy counselling services, stating:
There has been a lot of valid concern about the
quality of the training of some of the people who are on the other end of the
phones, but it does not take the place of the need for the bill to ensure that
there is transparent advertising.[242]
9. Sensis
concerns
The purpose of clause 6 of the bill is to specify the
requirements for pregnancy counselling organisations which may otherwise
promote their services in a manner which is misleading or deceptive – not the
organisations which advertise these services.
However, if an organisation that advertises a service
in a manner which is misleading and that organisation is involved in trade and
commerce, it is already subject to a range of provisions under Parts V, VC and
VI of the Trade Practices Act 1974. That Act already provides
substantial penalties for a breach of these provisions.
It is the intention of clause 6 of the bill to
clarify, so as to remove any possibility of misleading or deceptive advertising
in this area, the specific requirements for the advertising of, or notification
of, pregnancy counselling services. The clause does provide both defences and
for a penalty. This specific situation is not covered by the Trade Practices
Act 1974, hence the need for the separate provisions provided by this bill.
10. Recommendation
We recommend that the bill pass the Senate.
Senator Natasha Stott Despoja
AD,
South Australia
Senator Claire Moore
ALP, Queensland
Senator Kerry Nettle
AG,
New South Wales
Senator Ruth Webber
ALP,
Western Australia
Senator Lyn Allison
AD,
Victoria
Senator Carol Brown
ALP, Tasmania
Navigation: Previous Page | Contents | Next Page