No! this is what you said nascar
"Manda, what gets me is that there are perfectly developed countries in the world (like Australia, New Zealand, Spain, Ireland...etc) that have the common decency to realize that killing an unborn baby is unacceptable, thus have NO ABORTION laws"
sidenote: note the words you put in capitals.
You can get an abortion in Australia.....in fact go read for yourself,
See further: L. Cannold, Feminism, Morality and the Hard Choices Women Make Allen & Unwin, Sydney, 1998; M. O'Donovan and J. Stuparich (ed), The Abortion Debate: Pro-Life Essays, ACT Right to Life Association, Canberra, 1994; A. Gutman and D. Thompson, Democracy and Disagreement Cambridge Massachusetts, Belknap Press (Harvard University), 1996.
See further: Expert Panel of Women's Committee of National Health and Medical Research Council (NHMRC), An Information Paper on Termination of Pregnancy in Australia, AGPS, Canberra, 1996; L. Ryan, M. Ripper and B. Buttfield, We Women Decide: Women's Experience of Seeking Abortion in Queensland, South Australia and Tasmania 1985-1992, Flinders University, Adelaide, 1994.
See A. Rahman, L. Katzive and S. Henshaw, 'A Global Review of Laws on Induced Abortion, 1985-1997,' International Family Planning Perspectives, vol. 24, no. 2, 1998, p. 56.
See generally A. Dix et al, Law for the Medical Profession in Australia, 2nd ed, Butterworths-Heinemann, Melbourne, 1996; B. Bennett, Law and Medicine, Law Book Company, Sydney, 1997; P. MacFarlane, Health Law: Commentary and Materials, 2nd ed, Federation Press, Sydney, 1995.
See P. Gillies, Criminal Law, 3rd ed, Law Book Company, Sydney, 1993, p. 10; Brennan v. R (1936) 55 CLR 253 per Dixon and Evatt JJ; Stuart v. R (1974) 134 CLR 426 per Gibbs J.
Gillies, supra n 5, p. 10.
The Criminal Code in each of Queensland (first enacted in 1899) and Western Australia (first enacted in 1902) is based on a draft written in 1897 by Sir Samuel Griffith, then Chief Justice of the Supreme Court of Queensland. The Tasmanian Criminal Code (first enacted in 1924) was influenced by the Griffith model but differs in many respects. The Northern Territory Code (first enacted in 1983) is in many ways 'more individual, indeed almost idosyncratic', incorporating aspects of the Griffith model, the Tasmanian Criminal Code and New Zealand's Criminal Code of 1893: E. Edwards et al.The Criminal Codes: Commentary and Materials, 4th ed, Law Book Company, Sydney, 1992, pp. 3-4.
One example of this divergence is the different interpretations given by Australian and English courts to the defence of intoxication; another is their different approach to defining the elements of murder at common law: Gillies, supra n 5, p. 9.
Crimes Act 1958 (Vic), ss. 65 and 66; Crimes Act 1900 (NSW), ss. 82, 82 and 84; Crimes Act 1900 (ACT), ss. 42, 43 and 44; Criminal Code Act 1899 (Qld), ss. 224, 225 and 226; Criminal Code Act 1924 (Tas), ss. 134 and 135; Criminal Law Consolidation Act 1935 (SA), ss 81 and 82; Criminal Code Act 1983 (NT), ss. 172 and 173.
The Western Australian Parliament recently repealed ss. 199-201 of the Criminal Code 1913 (WA) and replaced these provisions with a new s. 199. See further infra.
Except in the Northern Territory, and now in Western Australia.
For discussion of when a pregnancy begins for the purposes of the crime of unlawful abortion, and thus when it is possible to 'procure a miscarriage', see N. Cica, 'The Inadequacies of Australian Abortion Law', Australian Journal of Family Law vol. 5, 1991, pp. 49-51.
24 & 25 Vict. c. 100.
7 Will. 4 & 1 Vict. c 85.
9 Geo. 4 c. 31.
43 Geo. 3 c. 58.
W. Blackstone, Commentaries on the Laws of England, pp. 129-130; J. Barry, 'The Law of Therapeutic Abortion' , Proceedings of the Medico-Legal Society of Victoria, vol. 3, 1938, p.212. See G. Williams, The Sanctity of Life and the Criminal Law, Knopf, New York, 1957, p. 152; E. Coke, Institutes of the Laws of England, Part III p. 50. For a discussion of the early English abortion statutes see K. Petersen, Abortion Regimes, Dartmouth Publishing, Aldershot, 1993, pp. 19-21; B. Dickens, Abortion and the Law, McGibbon & Kee, London, 1966, pp. 20-28; and J. Keown, Abortion, Doctors and the Law, Cambridge University Press, Cambridge, 1988, pp. 3-47.
In all Australian States and Territories except Western Australia, the wording of the original offence indicates this implicitly: see: I. Kennedy and A. Grubb, Medical Law: Text with Materials, 2nd ed, Butterworths, London, 1994, p. 865; L. Crowley-Smith, 'Therapeutic Abortions and the Emergence of Wrongful Birth Actions in Australia', Journal of Law and Medicine, vol. 3, 1996, p. 359. In Western Australia, the wording of the new offence explicitly states that an abortion will not be unlawful in specified circumstances.
See Cica, supra n 12 at 38-43. This tripartite classification system is taken from Royal Commission on Human Relationships, Final Report: Volume 3, AGPS, Canberra, 1977, p. 137, modified to take account of the recent changes to the law in Western Australia.
Until recently the laws in Western Australia also fell into this category.
 3 All ER 615;  1 KB 687. For discussion of this case, see Petersen, supra note 17, pp. 63-5.
For discussion of this offence, see infra.
Infant Life (Preservation) Act 1929 (UK), s. 1(1).
Williams, supra n 17, p 152. C.f. R v. Woolnough  2 NZLR 508, where a majority of the New Zealand Court of Appeal, interpreting legislative provisions similar to s. 58 of the Offences Against the Person Act 1861, criticised and rejected an approach based on the doctrine of necessity. Richmond P in particular (at 516-7) criticised the 'extreme vagueness' of that doctrine. He said that the court should not 'confine its approach to this question by reference to the so-called general defence of necessity in the common law,' but should instead make a 'value judgment' and accept the responsibility entrusted to it by the legislature of 'drawing a line between those abortions which are and those which are not lawful.'
 3 All ER 615 at 619, emphasis added.
In Royal College of Nursing of the United Kingdom v. Department of Health and Social Security  2 WLR 279 at 298, Lord Diplock described this reference to wreckage as 'a vivid phrase borrowed from one of the witnesses, but unfortunately lacking in precision.'
Macnaughten J himself acknowledged that he was advocating a 'reasonable' rather than a 'wide and liberal' interpretive approach:  3 All ER 615 at 619.
Williams, supra note 17, p. 163.
Kennedy and Grubb, supra note 18, p. 864. C.f. Keown, supra note 17, pp. 52-57, citing dicta in R v. Collins  2 British Medical Journal 59 at 129 per Grantham J and R v. Wilhelm (185
17 Med. Tim. Gaz. 658 per Bramwell B.
R v. Woolnough  2 NZLR 508 at 515 per Richmond P.
Unreported, Central Criminal Court, May 1948. See (1984) 1 British Medical Journal, 1008.
Williams, supra n 17, p. 164.
 Crim LR 469. See J. Havard, 'Therapeutic Abortion'  Crim LR 600.
See Kennedy and Grubb, supra note 18. For discussion of abortion law in Northern Ireland, see J. Kingston, A. Whelan and I. Bacik, Abortion and the Law, Round Hall Sweet & Maxwell, Dublin, 1997, chapter 8.
 VR 667.
C.f. R v. Bourne  3 All ER 615, where Macnaghten J's interpretation of unlawful arguably also relied on the defence of necessity, but where the judge himself did not acknowledge such reliance. See discussion, supra.
ibid., p. 672.
February 1972, Victorian County Court, unreported, per Southwell J. See The Age 19/2/72 and K. Breen, V. Plueckhahn and S. Cordner, Ethics, Law and Medical Practice, Allen & Unwin, Sydney, 1997, p. 282.
S. Siedlecky and D. Wyndham, Populate and Perish: Australian Women's Fight for Birth Control, Allen & Unwin, Sydney, 1990, p. 99.
 1 VR 182 per Brooking, Tadgell and Ormiston JJA.
AAA v. BBB, 12 September 1994, Supreme Court of Victoria (Ashley J), unreported charge to the jury, p. 1230.
ibid., pp. 1253-4.
ibid., p. 1264.
ibid., pp. 1372 and 1223.
ibid., pp. 1370-1.
See further J. Rush, 'Exemplary Damages - An Exemplary Damages Case', unpublished paper delivered at BLEC Advanced Medical/Legal Seminar, 25 August 1995.
Backwell v. AAA  1 VR 182 at 215-6 per Ormiston JA, with whom Brooking JA concurred.
(1995) 128 ALR 238. Hereafter referred to as the Right to Life case.
(1995) 128 ALR 238 at 244.
Therapeutic Goods Regulations (Cwth), reg 12(1A), Sch 5a Item 3(e).
(1995) 128 ALR 238 at 256.
(1994) 125 ALR 337.
(1995) 128 ALR 238.
See discussion infra.
(1995) 128 ALR 238 at 244-5.
ibid., p. 255.
ibid., p. 255 per Lockhart J.
This argument is made in M. Spry, 'A 'Person Aggrieved' Under the ADJR Act: Three Recent Cases on Standing' Australian Journal of Administrative Law vol. 3, no. 2, 1996 p. 120. See further M. Allars, 'Standing: the Role and Evolution of the Test' (1991) 20 FLR 101.
Spry, ibid., pp. 126-7.
ibid., p. 126. Spry argues that this trend was also followed by Sackville J of the Federal Court in two cases in which he had previously held that environmental conservation groups were 'persons aggrieved' for the purposes of the ADJR Act: Tasmanian Conservation Trust Inc v. Minister for Resources (1995) 127 ALR 580; North Coast Environment Council Inc v. Minister for Resources (1995) 127 ALR 617.
(1995) 128 ALR 238 at 170 per Gummow J; at 269 per Beaumont J.
See further In the Application of Kathleen May Harrigan, High Court of Australia, 1982, unreported; discussed in J. Scutt, 'Disturbing Connections - Artificial and Natural Conception and the Right to Choose' in J. Scutt, ed The Baby Machine, McCulloch Publishing, Melbourne, 1988, p. 162.
Attorney-General (Qld) (ex rel Kerr) v. T (1983) 46 ALR 275; F v. F (1989) 13 Fam LR 189; Paton v British Pregnancy Advisory Service Trustees  1 QB 276; C v. S  1 QB 135. See discussion infra.
(1972) 3 DCR (NSW) 25 at 29.
The relevant provisions are ss. 82 - 84 of the Crimes Act 1900 (NSW).
ibid., p. 28. See C. Henry, 'Abortion Retried', Alternative Law Journal, vol. 20, no. 5, 1995, p. 240.
See ibid., p. 29.
Sydney Morning Herald 11 January 1975, quoted and discussed in K. Coleman, Discourses on Sexuality: The Modern Abortion Debate, unpublished Macquarie University doctoral thesis, 1991, p. 274.
Coleman, supra n 71, p. 274.
ibid., p. 276.
ibid., p. 275-6.
 1 NSWLR 311.
ibid., p. 318.
ibid., p. 326.
Supreme Court of New South Wales, 18 April 1994, unreported. Hereafter referred to as the Superclinics case. For criticism of the approach of Newman J in this case, see C. Tricker, 'Sex, Lies and Legal Debate: Abortion Law in Australia' Sydney Law Review, 1995, p. 446.
Kambouroglou v. The Women's Hospital (Crown Street), Supreme Court of New South Wales (Toose J), 2 December 1980, unreported.
C.f. Allen v. Bloomsbury Health Authority  1 All ER 651; Dahl v. Purnell, (1992) 15 Qld Lawyer Reps 33.
The important issue of whether recovery of damages in respect of the birth of a healthy child would be against public policy therefore was not addressed until Newman J's ruling was reviewed by the Court of Appeal of New South Wales. At that stage the relevant public policy considerations were explored in some detail by Kirby P and to a lesser extent by Meagher JA.
CES and Another v. Superclinics (Australia) Pty Ltd and Others (1995) 38 NSWLR 47. For a detailed discussion of this case, see R. Graycar and J. Morgan, 'Unnatural Rejection of Womanhood and Motherhood: Pregnancy, Damages and the Law - A Note on CES v. Superclinics (Aust) Pty Ltd' Sydney Law Review, vol. 18, 1996, p.323.
Of the two judges in the majority on this point, however, only one- Kirby A-CJ- concluded that the plaintiff should be compensated for the costs of raising her child. The other majority judge, Priestley JA, stated that the plaintiff could have surrendered the child after its birth for adoption, and that her failure to do so amounted to a novus actus interveniens. Priestley JA said that this meant that the costs of bringing up the child therefore were not caused by the defendants' negligence, but by the plaintiff's 'choice' to keep her child. The third judge, Meagher JA, agreed that the plaintiff's decision not to surrender her child for adoption barred recovery of damages. He characterised this decision as a failure to mitigate her loss.
(1995) 38 NSWLR 47 at 64-65.
ibid., pp. 59-60.
ibid., p. 60.
 2 Qd R 326 at 329. See discussion infra.
(1995) 38 NSWLR 47 at 65.
ibid., p. 63.
ibid., p. 66 and p. 63.
ibid., p. 66.
G. Williams, 'The Law of Abortion', Current Legal Problems, vol. 5, 1952.
Superclinics v. CES (No S88 of 1996); Nafte v. CES (No. S91 of 1996).
The relevant provisions are ss. 42-44 of the Crimes Act 1900 (ACT).
On codification, see discussion supra.
See discussion supra and Cica, supra note 12 at 40.
Under the Termination of Pregnancy Act 1978 (ACT).
Criminal Code Act 1899 (Qld), ss. 224-226.
 St R Qd 48 per Mansfield SPJ, Mack and Townley JJ.
ibid., p. 80 per Mansfield SPJ.
ibid., p. 81 per Mansfield SPJ.
See R v. Bayliss & Cullen, (1986) 9 Qld Lawyer Reps 8 at 21-22.
K v. T  1 Qd R 396 at 398 per Williams J (obiter); Re Bayliss, Supreme Court of Queensland,
24 May 1985, OS No 376 of 1985, unreported, per McPherson J (obiter).
 9 Qld Lawyer Reps 8.
ibid., p. 33.
ibid., p. 45 per McGuire DCJ.
See ibid., p. 26-7 and p. 45.
ibid., p. 26-7.
See ibid., p. 33.
ibid., p. 45.
 2 Qd R 326. See L. Crowley-Smith, 'Veivers v. Connolly Revisited' Queensland Law Society Journal, 1995, p. 391.
 2 Qd R 326 at 329.
ibid., p. 329.
Compare the approach of Newman J in the Superclinics case, discussed supra.
 1 Qd R 396 at 400-401, citing Paton v.BPAS Trustees  1 QB 276 at 279 per Sir George Baker P
and Watt v. Rama  VR 353 per Winneke CJ and Pape J at 360.
ibid., pp. 401-402.
ibid., pp. 402-403.
 1 Qd R 404 at 405-6.
ibid. at 402-3, relying on Paton v. British Pregnancy Advisory Service Trustees  1 QB 276 at 279
per Sir George Baker P.
(1983) 57 ALJR 285 at 286.
ibid. at 286, relying on Paton v. BPAS Trustees  1 QB 276 at 279 per Sir George Baker P.
ibid. at 286.
(1989) 13 Fam LR 189.
ibid. at 193, relying on Paton v. BPAS  1 QB 276 at 282 per Sir George Baker P.
ibid. at 194, relying on Paton v. BPAS  1 QB 276 at 279 per Sir George Baker P, K v. T  1 Qd R 396 at 401,
Attorney-General (Ex rel Kerr) v. T  1 Qd R 404 at 406-7 and Attorney-General (Qld) (Ex rel Kerr v. T (1983)
57 ALJR 285 at 286.
Lindenmayer J also stated that this jurisdiction is not conferred by s. 70C(1) of the Family Law Act 1975 (Cwth),
which empowers the court to make orders in relation to a child, on the basis that the term 'child' in that section
refers only to a living child: ibid. at 194-5.
ibid., p. 198.
District Court of Queensland per Hoath J, 24 May 1996, unreported.
See infra. Also see B. Faust, 'Tragedy born of silence' The Australian,, 1 June 1996; Karate man jailed for kicking unborn
child to death' The Canberra Times, 25 May 1996; ''Gentle giant' kicked unborn son dead' The Sydney Morning Herald ,
27 May 1996.
Criminal Code Act 1924 (Tas), s. 51(1).
And therefore that of the old Western Australian statutory defence, the meaning of which has not been tested.
See discussion infra.
See Cica, supra note 12 at 41.
For example, the comments by Gibson J in R v. Luttrell (unreported, 1963 Tasmanian Judgments 326), the only recorded
case since the early 1960s involving prosecution under the Tasmanian abortion provisions, relate to sentencing
issues rather than to the content of the legal rules that criminalise abortion.
See H. Finlay, 'Abortion - Right or Crime?' University of Tasmania Law Review, vol. 10, 1990, p. 8.
The South Australian reform introduced a new s. 82A , containing this definition, into the
Criminal Law Consolidation Act 1935 (SA).
Criminal Law Consolidation Act 1935 (SA), ss. 81 and 82. See Cica, supra note 12 at 41-42.
ibid., s. 82A(7)-(
. These provisions are best described as establishing the crime of child destruction and are
discussed in more detail later in this paper.
ibid., s. 82A(1)(a)(i).
ibid., s. 82A(1)(a)(ii).
Cica, supra note 12 at 64.
ibid., s. 82A(1)(a).
ibid, s. 82A(1).
Criminal Law Consolidation Act 1935 (SA), s. 82A(2).
ibid., s. 82A(1)(b).
ibid., s. 82A(5).
Criminal Law Consolidation (Medical Termination of Pregnancy) Regulations 1996, reg 5(1) and (2);
the prescribed form is found in Schedule 1 Part A. These regulations came into operation on 1 September 1996
and revoked the Abortion Regulations 1970 (SA).
Criminal Law Consolidation (Medical Termination of Pregnancy) Regulations 1996, reg 5 (3);
the prescribed form is found in Schedule 1 Part B.
ibid. Schedule 3.
ibid., reg 6; the prescribed form is found in Schedule 2.
The Criminal Law Consolidation Ordinance (No 2) 1973 (NT) introduced a new s. 174, containing this definition,
into the Criminal Law Consolidation Act & Ordinance 1876-1969 (NT) [now the Criminal Code Act 1983 (NT)].
Criminal Code Act 1983 (NT), ss. 172 and 173.
ibid., s. 174(1)(a).
ibid., s. 174(1)(b).
ibid., s. 174(1)(c).
ibid., s. 174(4)(b).
ibid., s. 174(2).
See N. Cica, 'Ordering the Law on Abortion in Australia's "Wild West"' Alternative Law Journal, vol. 23, no. 2, 1998, p. 89.
This legislation came into effect on 26 May 1998.
Health Act 1911 (WA), s. 334(3)(a).
ibid., s. 334(5).
ibid., s. 334(
ibid., s. 334(3)(b).
ibid., s. 334(3)(c).
ibid., s. 334(3)(d).
ibid., s. 334(7).
ibid., s. 334(2).
Acts Amendment (Abortion) Act 1998 (WA), s. 8.
Crimes Act 1958 (Vic), s. 10 and Criminal Law Consolidation Act 1935 (SA), ss. 82A(7)-(
. The Victorian provision
does not explicitly refer to the exception for acts done in good faith for the sole purpose of preserving the mother's life.
It instead specifies that the destruction must be performed 'unlawfully' to constitute a crime. Arguably, the word 'unlawfully'
in the Victorian provision implicitly incorporates the exception for acting in good faith to preserve the mother's life.
See Cica, supra note 12 at 43.
19 & 20 Geo 5, c 34
See infra. Also see L. Waller, 'Any Reasonable Creature in Being,' Monash Law Reports, vol. 13, 1987, p. 41.
See Williams, supra n 94 at 130 and 146. Note that legislative reforms passed in 1991 by the UK Parliament mean
that the child destruction offence in the Infant Life (Preservation) Act 1929 no longer applies to any abortion performed
in England, Scotland or Wales in accordance with the Abortion Act 1967.
C v. S  QB 135 and Rance v. Mid-Downs Health Authority  1 QB 587.
Rance v. Mid-Downs Health Authority  1 QB 587 at 688.
See Cica, supra n 12 at 43-44.
A pregnant woman can be given steroid treatment to enhance foetal lung development, but this is only effective
from around 26 weeks' gestation.
(1986) 9 Qld Lawyer Reps 8 at 34-37.
Report of the Criminal Code Advisory Working Group to the Attorney-General, Brisbane, July 1996.
This Bill also repealed the much-criticised and unproclaimed 1995 Criminal Code which had been introduced the
previous year to replace the 1899 Criminal Code: see Criminal Law Amendment Bill 1996 (Qld) - Explanatory Notes, p. 1.
See ibid., p. 12 (Clause 47).
These amendments were introduced by Liz Cunningham MP (Independent, Gladstone) and were supported by the
Criminal Code Act 1899 (Qld), ss. 224-226.
WA Court of Criminal Appeal, 4 April 1996, unreported, pp. 7-8. See further discussion of this case infra.
The Criminal Code: A General Review, Perth, 1983; see also S. Gabriel, 'Child Destruction: A Prosecution Anomaly
Under Both the Common Law and the Criminal Codes,' Criminal Law Journal, vol. 21, 1997, pp.35-6.
For a detailed explanation of the legal rules governing homicide in the common law jurisdictions (Victoria, NSW and
the ACT) see Gillies, supra n 5, chapter 25 and D. Brown et al., Criminal Laws: Materials and Commentary on Criminal
Law and Process in New South Wales 2nd ed, Federation Press, Sydney, 1996, vol. 1, chapter 5. For a detailed explanation
of the legal rules governing homicide in the Code States (Queensland, Western Australia, the Northern Territory
and Tasmania), see Edwards et al., supra n 7, chapter 10.
The following is based on Cica, supra n 12 at 56. See also Gillies, supra n 5, pp. 605-6.
Queensland, Western Australia, Tasmania and the ACT there is a statutory definition of birth for these purposes,
which applies to both murder and manslaughter prosecutions: Criminal Code 1899 (Qld) s. 292, Criminal Code (WA),
s. 262, Criminal Code (Tas) s. 153(4), Crimes Act 1900 (ACT) s. 10. In New South Wales, the relevant definition
with respect to murder prosecutions is found in the Crimes Act 1900 (NSW), s. 20, and with respect
to manslaughter prosecutions the common law definition of birth in R v. Hutty  CLR 338 at 339 applies.
That common law definition also applies with respect to both murder and manslaughter in South Australia, Victoria
and the Northern Territory.
See P. Bates, 'Legal Criteria for Distinguishing Between Live and Dead Human Foetuses and Newborn Children,'
UNSW Law Journal, 1983, p. 143.
Williams, Textbook of Criminal Law 1983, p. 290; c.f. J. Mason and R. McCall Smith Law and Medical Ethics 3rd ed,
Butterworths, London, 1991, p. 114.
Williams, supra n 94, p. 304.
Bates, supra n 191, pp. 149-150; J. Keown, 'Homicide, Fetuses and Appendages' Cambridge Law Journal, 1996, pp. 207-9.
2 Cox CC
500 per Maule J.
(1832) 1 Mood CC
346; 168 ER 1298.
 QWN 36.
 2 WLR 412.
That is, performed in accordance with the Abortion Act 1967, which defines when an abortion will be lawful in
England, Wales and Scotland.
See Keown, supra n 194 at 209.
WA Court of Criminal Appeal, 4 April 1996, unreported, per Ipp, Wallwork and Murray JJ.
Per Murray J at pp. 8-9, with whom Ipp and Wallwork JJ concurred.
Criminal Code Act 1899 (Qld), s. 294; Criminal Code Act 1983 (NT), s. 158.
Watt v. Rama  VR 353; Lynch v. Lynch (1991) 25 NSWLR 411; X and Y v. Pal (1991) 23 NSWLR 26.
Kosky v. The Trustees of the Sisters of Charity  VR 961.
See in particular transcript p. 10 per Murray J.
The Times, 16 September 1983. See Mason and McCall Smith, supra n 191, pp. 117-8.
 2 WLR 412 at 421.
It might take you awhile to read it, the material is a now exactly fox