. . . The legal test for when an abortion is not unlawful-and therefore permitted-is different in each State and Territory of Australia.
In Western Australia, the recent changes to the law repealed the old statutory provisions establishing the crime of 'unlawful abortion' and replaced them with a differently worded provision. This new provision makes it unlawful to perform an abortion unless it is justified under Western Australia's health legislation.
In the Australian Capital Territory the law is unclear. There has been no judicial ruling along the lines of those given by courts in Victoria and New South Wales. It is generally assumed, however, that the legal position in the Australian Capital Territory is the same as the legal position established at any given time by case law in New South Wales.
In Victoria, a landmark Supreme Court ruling in 1969 ('the Menhennitt ruling') established that an abortion will be lawful if the accused held an honest belief on reasonable grounds that the abortion was both 'necessary' and 'proportionate.' 'Necessity' in this context means that the abortion was necessary to preserve the pregnant woman from a serious danger to her life or to her physical or mental health, beyond the normal dangers of pregnancy and childbirth, that would result if the pregnancy continued. 'Proportionate' means the abortion was in the circumstances not out of proportion to the danger to be averted. The Menhennitt ruling apparently permits an abortion at any stage of pregnancy. Further, it does not appear to impose a requirement that the abortion be performed by a medical practitioner in order to be lawful.
In Queensland, an important District Court ruling in 1986 ('the McGuire ruling') confirmed that the interpretation of the law offered in Victoria in the Menhennitt ruling . . .
In Tasmania, the law is very unclear. There has been no judicial ruling clarifying the meaning of the statutory provisions that criminalise abortion in that State.
In South Australia, legislation was enacted in 1969 that clarified and generally liberalised the abortion law in that State. Under that legislation an abortion cannot be performed late in pregnancy-possibly from around 22-23 weeks of pregnancy, and certainly from 28 weeks of pregnancy-unless the abortion is performed in good faith solely to preserve the life of the pregnant woman. Earlier in pregnancy, however, an abortion can be performed whenever either the 'maternal health ground' or the 'foetal disability' ground is satisfied. . . .
In the Northern Territory, legislation was enacted in 1974 along the lines of the South Australian legislation. The Northern Territory legislation permits abortion up to 14 weeks of pregnancy where either the 'maternal health ground' or the 'foetal disability ground' is satisfied. . . .
In Western Australia, until recently the legal position was apparently the same as in Queensland. The law was untested, however, as there had been no judicial ruling on the matter in Western Australia.
