The Inquiry into the Reproductive Healthcare Reform Bill 2019 was farcical at best.  Unlike other states where lengthy consultation processes were carried out over a period of months, New South Wales Parliament chose to hold an in-house inquiry over the course of one week.

The Hearings were held by the Legislative Council’s Social Issues Standing Committee, with the following members:  Hon Shane Mallard, Liberal, Chair of the Committee; Ms Abigail Boyd, Greens; Hon Niall Blair, The Nationals; Hon Greg Donnelly, ALP; Hon Rose Jackson, ALP; Hon Trevor Khan, The Nationals; Hon Natasha Maclaren-Jones, Liberal; and Rev Hon Fred Nile, Christian Democratic Party.

On Friday 9^th August a copy of the bill as passed in Legislative Assembly (ie with amendment) went live on the inquiry website.  This signalled the official beginning of the consultation process.  Submissions were invited with an initial deadline of the following Tuesday.  Greg Donnelly, in his contribution in the upper house, described this flawed process:

Those wishing to make submissions were informed [on Friday] that they would be due at close of business Tuesday… In effect, excluding weekend days, that gave stakeholders and the citizens of this State just 48 hours to consult, research, draft, proof, finalise and submit their submissions.

Hon Greg Donnelly

On Tuesday afternoon, just after 4pm, the portal crashed after receiving 3-4 submissions per minute.  The cut off was extended to midnight Wednesday 14^th August, however this was not well advertised.  Approximately 13,000 submissions were received in total and we are left to wonder how many more attempted to make submissions but were excluded from doing so either due to their own time restraints or due to technological problems.

Stakeholders and citizens panicked at not being able to lodge their submissions via the portal, and many tried to email their submissions.  Many were angry and emotionally distraught, thinking that they had missed the deadline.

Hon Greg Donnelly

Rev Hon Fred Nile was distraught with the process and attempted to raise the following question on the first sitting day following the inquiry process:

My question without notice is directed to …[the] Leader of the Government, representing the Premier. Will the Leader of the Government in this House explain how it is that the Standing Committee on Social Issues, which has received over 10,000 submissions from the public on a contentious bill, can be expected to adequately consider them in one single week, hold only two days of hearings and publish a report three days after their conclusion?

Rev Hon Fred Nile

The question was ruled out of order because it was not “officially connected to proceedings pending in the House or to any matter of administration of which the Minister is responsible” however Rev Nile had made his point.  The whole process was ludicrous.

Public hearings were held between Wednesday and Friday.  Committee members had little time to prepare for this process and were restricted in their question time:

Committee members were significantly restricted in the time they had available to ask questions of the witnesses.  In some instances, individual committee members – and I fell into this category because I was on the committee – barely had five minutes to question panels of four or five people.

Hon Greg Donnelly

Despite this, the Chair’s Forward written by Hon Shane Mallard, noted the following:

                15 hours of hearings over three days

                15 panels of witnesses grouped into areas of interest

                44 witnesses including 10 senior religious representatives

                Approximately 300 questions asked by committee members

                174 pages of Hansard transcript

Hon Shane Mallard

One interesting point which has received very little attention is the fact that the NSW Government, including associated departments, agencies, bodies and even the chief health officer, provided no submission, no witnesses and were not called to give testimony at the hearings.  During the Committee proceedings (as recorded in the Appendices of the tabled Report), Greg Donnelly moved that the Minister for Health, Brad Hazzard and the NSW Chief Obstetrician and Gynaecologist be invited to appear however this was unsupported by the majority of the committee.  This represents a complete disengagement from the process on behalf of the Government who were allowing this bill safe passage through the Parliament:

The New South Wales Government did not provide one witness from a department, an agency or any other body to appear at the hearings and give testimony.  Not did we receive any submission from any Government Minister, department, agency or body.  The chief obstetrician/gynaecologist – the chief health officer in the State of New South Wales responsible for mothers and babies – did not front the hearings or even put a phone call through to show any interest in participating in the enquiry.  Is it any wonder that people inside and outside Parliament feel a little aggrieved?

Hon Greg Donnelly

The following witnesses were called (listed in order of appearance):

Wednesday 14th August

Session 1: Bishop Daniel, Bishop for the Coptic Orthodox Church, Diocese of Sydney, Qld and NT; Archbishop Fisher, Catholic Archbishop of Sydney; Nochum Schapiro, President, Rabbinical Council of Australia

The Catholic Church believes every human life is both invaluable and inviolable. The right to life and love is not qualified by age, sex, ability or wantedness; it is for every human being. It is estimated that at least 30,000 abortions occur each year in this State—more than 80 a day. Whatever their views on abortion, most agree that that is too many. This bill seeks to make abortion more common. It is every bit as extreme as the bill rejected by the Legislative Council only two years ago. It allows for unlimited abortion up to 5½ months, thus including viable babies. Indeed, it allows late-term abortion up to and including day-of-birth abortions, despite very strong community opposition to this. It allows sex-selection abortion, despite overwhelming community opposition.

Archbishop Fisher

Session 2: Archbishop Glenn Davies, Anglican Archbishop of Sydney; Reverend Joseph Azize, Maronite Eparchy of Australia;

I think the way this bill is framed, where the use of the word “mother” is avoided and the language of termination of pregnancy is used as if it is some kind of inanimate object, does injustice to our society. All of us in this room were in our mother’s womb; that is how we all began life. The vulnerability of the unborn, the voicelessness of the unborn is something that we—and you as councillors in the upper House—should take into account in that we have a responsibility to ensure the exercise of good laws for the benefit of all people.

Archbishop Davies

Reverend AZIZE: I want to leave you in no doubt that the Maronite church and people have a principled and sincere objection to this legislation. We do not see the need for it. Our starting point is this: The taking of an innocent life is always wrong and the child in the mother’s womb is an innocent life. …. This legislation disrespects the basic principle of the sanctity of human life. Part of the reason that abortion is tolerated by many people who otherwise would be in principle opposed to the taking of an innocent human life is that no other victim is so completely faceless, so completely unable to speak for itself, as the life in the womb.

Rev Azize

Session 3: Dr Rachel Carling, CEO Right to Life NSW; Dan Flynn, Chief Political Officer, ACL; Terri Kelleher, National VP, AFA

I do not believe abortion is a solution….

I would like to see men who seek to control women by forcing them and coercing them into having an abortion to be criminally liable for that and I would like to see doctors who are taking advantage of women at a vulnerable time in their life to make money, because abortion is an industry. I would like to see them held criminally liable….

May I also add that I do not have confidence in this Parliament who were rushing through a bill with less than a month of discussion and consultation. There is really no consultation. This is really two days of hearings and your website crashed because of all of the submissions that came in. I do not have confidence that this Parliament would be able to carry out that 12 month review and I do not have confidence that when that review came back, that this Parliament would act on that.

Dr Rachel Carling, CEO Right to Life NSW

Session 4: Ms Bronwyn Melville, Hon Secretary, Newcastle Pregnancy Help; Ms Tiana Legge, CEO, WOMBS

I am part of Newcastle Pregnancy Help… When women ring in and they say that they… have had an abortion… 100 per cent of them say they were not offered pre-abortion counselling, but 95 per cent of them say that they have been pressured.

Ms Bronwyn Melville

Session 5:  Ms Elizabeth Espinosa, President, Law Society of NSW; Ms Janet Loughman, Women’s Legal Service NSW; Mr Nicholas Cowdery AM QC, Council for Civil Liberties; Dr Philip Goldstone, Marie Stopes Australia

At one point in her lengthy opening statement, Ms Loughman stated:

We cannot be serious as a society about the prevention of domestic and family violence unless we remove abortion from the Crimes Act.

Ms Loughman

Unfortunately, she did not see the irony in preventing violence by inflicting violence on the unborn. She was also quick to offer abortion as a solution rather than looking to holistically at domestic violence situations where women need to be supported financially, emotionally, spiritually and psychologically. Denying a woman experiencing violence of motherhood only adds to the physical and emotional strain she is under.

Session 6:  Ms Anna Walsh, School of Law, University of Notre Dame, Sydney; Professor Margaret Somerville, School of Medicine, University of Notre Dame, Sydney; Mr Michael McAuley, President, St Thomas More Society

Most Australians do not accept the strongest pro-choice stance that abortion at any stage is a decision solely for the pregnant woman and her doctors and that the law should never be involved, nor do they accept the strongest pro-life stance, which is that abortion should never be legally allowed. Most Australians are on a spectrum between these two poles. So does the bill strike the right balance between these poles and provide the right safeguards? My answer is a clear no.

The criminal law, yes it is meant to prevent harm, but its other important functions are symbolic, an affirmation of the shared values we have, especially regarding respect for human life, and these will be lost if this is taken out of the criminal code. ….

remember that we are all ex-fetuses and our lives were protected by ethics and law. In changing those ethics and law you, as our lawmakers, need to consider deeply what we as a society owe to present and future unborn children with respect to protection of their lives. The ethical tone of a society is not set by how it treats its strongest, most privileged, most powerful members, but by how it treats its weakest, most vulnerable and most in need. Unborn children belong in that latter group.

Prof Margaret Somerville

Session 7:  Mr Timothy Game SC, President, Bar Association; Ms Gabrielle Bashir SC, Junior VP, Bar Association

While denying that they played a proactive role in this legislation, both witnesses admitted to writing to MPs and the Premier to express their support for the bill. They also admitted to putting a policy of support on their website.

Thursday 15 August

Session 8:  Ms Wendy McCarthy AO, Campaign Chair, NSW Pro-choice Alliance; Ms Sinead Canning, Campaign Manager, NSW Pro-choice Alliance; Ms Edwina MacDonald, Legal Director, Human Rights Law Centre; Ms Claire Pullen, Chair, Our Bodies, Our Choice; Ms Melanie Fernandez, Co-Convenor, Pro-Choice NSW

Rev Nile asked questions on when life begins. He received, when repeatedly pressed, an answer from the Human Rights Law Centre representative:

The right to life occurs at birth. The human rights perspective is clear on this issue.

Ms Macdonald, Legal Director, Human Rights Law Centre

Session 9:  Ann Brassil, CEO, Family Planning NSW; Adjunct Professor, Dr Deborah Bateson, Medical Director, Family Planning NSW; Ms Denele Crozier, CEO, Women’s Health NSW; Ms Karen Willis OAM, Executive Officer, Rape and Domestic Violence Services Australia

Rev Nile challenged the panelists on the lack of counselling provided in abortion clinics, revealing that he had sent his secretary to visit abortion clinics where she received no counselling and where the receptionist was “quite pleased to process her into the abortion” without seeing a doctor or counsellor. Such practices were denied by most of the panel.

Session 10:  Dr Danielle McMullen, VP, Australian Medical Association (NSW); Dr Vijay Roach, President, RANZCOG; Ms Judith Kiejda, Assistant General Secretary, The NSW Nurses and Midwives Association

The panel insisted that they supported healthcare professionals with conscientious objections and would continue to do so. Dr Roach, during the course of this discussion, accused “religious hospitals” from preventing women from accessing the care they needed.

Session 11:  Adjunct Professor Kylie Ward, CEO, Australian College of Nursing;  Ms Sally Jope, Board Director, Central Coast Community Women’s Health Centre

At one point during the testimony, Ms Jope stated that unborn babies “do not have rights over an adult“. Rev Nile then asked, “[b]ut they do have rights?” to which he received this response:

Well, I do not know [if unborn babies have rights]….

[but] as I said before, I do not think the rights of the unborn child outweighs the rights of an adult female to make a decision about whether she continues with an unplanned and unwanted pregnancy…

Ms Jope, Central Coast Community Women’s Health Centre

Session 12:  Mr Rocky Mimmo, Chairman, Ambrose Centre for Religious Liberty; Professor Bernadette Tobin, Director, Plunket Centre for Ethics; Ms Rachael Wong, Managing Director, Women’s Forum Australia

The narrative in terms of the bill as described is misleading. I do not think for one moment it is about the decriminalisation. That matter of decriminalising could easily be accommodated by having a consequential Act within a renamed bill, if you like. It could be called an abortion rights bill or a termination rights bill which would more correctly address the subject contained in the bill. That is a matter for your Committee. You might like to make it as one of your recommendations, that it is a misleading name in terms of somehow decriminalising abortion. That is not the case. It clearly is the case that it is a bill that grants freedom of an abortion without restriction up to 22 weeks and with some limited restriction beyond 22 weeks

Mr Rocky Mimmo, Ambrose Centre for Religious Liberty

Session 13:  Rev Dr Peter Stuart, Anglican Bishop of Newscastle; Rev Simon Hansford, Moderator, Synod of NSW and the ACT, Uniting Church of Australia; Rev Dr Margaret Mayman, Pitt Street Uniting Church

This session involved the religious leaders who do not uphold the sanctity of life from conception.

I think that a distinction needs to be made between human life in the early stages of pregnancy and human personhood… it is a potential human being in the womb, … the status of that as a human person, we believe, evolves through the pregnancy and needs to be considered in that light.

Rev Dr Margaret Mayman, Pitt St Uniting Church

Session 14:  Dr Simon McCaffrey, Obstetrician and Gynecologist; Dr John Whitehall, President, Christian Medical and Dental Fellowship

Dr McCaffrey and Dr Whitehall presented a strongly pro-life stance from the perspective of specialist practitioners – obstetrics/gynaecology and paediatrics/neonatalogy respectively.

I probably represent maybe 20 to 30 per cent of women who believe that human life is so precious that it cannot be taken away from them. … that 20 to 30 per cent of women do find it comfortable seeking out an obstetrician who does not do abortions. To some extent, the way events have panned out over the last 40 years, because I believe the unborn child from the moment of conception is human life, with all due respects I simply cannot take that human life, just as I am against capital punishment.

Innocent life is innocent life and I cannot personally do anything harmful to it.

That opinion, that belief, many women in our society find comforting and a lot of women come to me because of that opinion.

Dr Simon McCaffrey

Friday 16 August

Session 15: In a last-minute decision, one extra session was added on Friday morning to accommodate: His Eminence Archbishop Haigazoun Najarian, Primate, Diocese of the Armenian Church of Australia and New Zealand; Metropolitan Basilos Kodseie, Antiochian Orthodox Archdiocese of Australia; Imam Hassan Elsetohy, President, Australian National Imams Council NSW

All three religious leaders spoke strongly in support of the sanctity of life, pointing out that if the law which condemns murder is 15,000 they saw no need to modernise it.  They represented large populations in NSW and made it very clear that they were against abortions being performed except in rare cases of emergency.

This last session ended the hearings.

Committee Report

At the end of the exhaustive hearing process, the Committee Report was drafted with one simple recommendation:

That the Legislative Council proceed to consider the Reproductive Health Care Reform Bill 2019, including any amendments in the committee stage that address stakeholder concerns raised during this inquiry.

Recommendation

This recommendation did not receive full support from the committee members.

Dissenting Statements

The Hon Greg Donnelly included a formal Dissenting Statement in the Committee Report.  In this statement he said, in part:

I believe that both those behind sponsoring the bill… and the Government have created circumstances such that MLAs and MLCs, despite their sincerity and best endeavours can not uphold their oath of office or act in a way, individually or collectively to create this new law that is for the “peace, welfare, and good government of New South Wales” [Reference: NSW Constitution]… …

in the cold, hard light of day…this has been one of the, if not the most morally, intellectually and politically bankrupt episodes in the history of the Parliament of New South Wales.

Hon Greg Donnelly

The Rev Hon Fred Nile also provided a formal Dissenting Statement to the report which said, in part:

…the Committee received over ten thousand submissions from the public in the extremely short period of time that it consulted with the public, and that an overwhelming majority of those submissions opposed the Bill.

Due to the voluminous quantity of the submissions received, the Committee has had to take a representative sample of those submissions; I understand that this translates into 4 submissions in favour of the Bill and 36 against.

The community outcry against this Bill is clear and unambiguous; it is incumbent on the Legislative Council, as a House of Review, to be guided by this outcry…

Rev Hon Fred Nile

In a final attempt to delay the bill and give it detailed consideration in the context of a parliamentary enquiry, Greg Donnelly proposed a motion that a joint committee consider the bill in detail and report back “no later than the last day in 2020”.  This was supported by Rev Nile and Mrs Maclaren-Jones.  Unsurprisingly, the majority of the committee voted against the motion and it was lost.