Abortion Law Reform Act – Upper House Amendments Part 2

Set 12:  Abortions not to be used for sex selection

Moved by:  Minister Damien Tudehope

Description: Abortions must not be performed for the purposes of sex selection, including if the baby is female, male or intersex – with the exception of confirmed or suspected sex-linked genetic disorders.

Arguments for: Hon Damien Tudehope quoted The Greens NSW official policy on sex, sexuality and gender identity which states their desire to “end .. in-utero testing of foetuses for .. intersex, and an end to terminations on that basis”.  He also cited the case of Dr Mark Hobart in Victoria who faced a professional misconduct complaint for refusing to refer a couple who did not wish to carry through with their pregnancy when it was discovered the mother was carrying a girl.  The SBS Radio investigation in May 2015 was extensively quoted in the debate as were the statistics around the ‘missing girls’ in Chinese and Indian communities in NSW.  Hon Scott Farlow supported the amendment calling it a “firm statement” against sex selective abortions.  Hon Greg Donnelly advocated for the amendment stating that it related to “brutal, gross discrimination against females”.

I think it is proper for offence to be taken by individuals being impugned with the suggestion that by bringing an amendment of this sort before this Committee we are engaging in some form of racist dog whistling exercise. I repudiate that completely and reject it absolutely. This issue of gendercide, particularly with respect to females, has been in the public domain for some decades. More recently it has been the subject of some analysis with respect to what is going on in Australia and New South Wales. … I find something quite attractive about the notion of having something which will specifically deter and provide a penalty as signalling to society the utter repugnance at the notion of terminating along gender lines. … The practice of abortion along gender lines is deeply sexist, brutal and utterly corrupts the fabric of our society if it is allowed to occur in any way whatsoever. The truth of the matter is that those to whom the practice is overwhelmingly directed are female foetuses

Hon Greg Donnelly MLC

Hon Taylor Martin supported the idea of making “it as clear as possible that terminations on the basis of sex selection will not be tolerated in New South Wales”.  Rev Hon Fred Nile described the reality of sex selective abortions and stated: “Any legal loophole that effectively allows the partners or family members of a prospective mother to abort her child due to its gender is reprehensible”.  Hon Lou Amato supported the amendment which would outlaw the ‘destruction of female babies on the basis of gender alone’.  Hon Matthew Mason-Cox applauded the “very specific message” that this amendment sends. 

Arguments against:  Ms Abigail Boyd rejected the interpretation of Greens policy.  While admitting they desired to end abortions against babies (she said fetus) who are intersex she rejected mandating this in legislation.  Hon Trevor Khan agreed with the premise of the amendment however disagreed with “the mechanism” describing it as “misconceived”.  Mr David Shoebridge likened the arguments for the bill as a cry that the ‘sky will fall down’.  Hon Emma Hurst claimed there was no conclusive evidence that sex selection abortions were occurring. 

 “Intermission” where sexism was brought into the debate:  Hon Rose Jackson paraphrased former PM Julia Gillard: “I will not be lectured on sexism and misogyny by some of the members of this House” and claimed that there was no evidence sex selection abortions are occurring.  Hon Mark Latham responded: “Having been proud to live in a gender‑equal household for decades, having served as Mr Mum in our house to advance the cause of the women in my life, I am not going to be lectured to about sexism”.  He then outlined his support for the amendment: “Nobody supports discrimination but the one thing we can say about this debate is that the ultimate discrimination against a female is to terminate a female fetus for no other reason than it is female. Is that not the ultimate form of discrimination in any society that a life is not allowed to live because of gender”?  After continual interruptions to his speech, Hon Mark Latham asked: 

 What would ever satisfy the snowflake opposite? How miserable can you be…. we should be voting here as a true conscience vote, not as an ego vote… Perhaps the ultimate disrespect of women of colour was the fact that dozens, scores, perhaps hundreds of them made submissions to the parliamentary committee and no-one ever got to read them. Perhaps that is the ultimate disrespect, that this was rushed so severely that of 14,000 submissions that were lodged only 100 were ever read. Perhaps there were many there from women of colour, but we will never know. So those who have rushed the process are perhaps being more disrespectful than they realise. The bottom line is the concern is there, the discrimination is possible and as legislators we should be acting against it.

Hon Mark Latham MLC

Arguments for (continued):  Hon Catherine Cusack described herself as a feminist, and supported the amendment, calling it “a genuine problem”.  Hon Scott Farlow supported this amendment as a “force of law” not merely a “statement of intent” against sex selection abortions.  Hon Courtney Houssos advocated for the establishment of a comprehensive legal framework to govern abortion which this amendment contributed to.   Hon Natasha Maclaren-Jones described this amendment as setting a high bar, ending with:  “I urge colleagues in this Chamber to seriously think about this amendment. If it has gone too far and is too strict we can review it, but if the evidence comes back and says that one child has been terminated it is on us. I encourage everyone to support the amendment”.

Arguments against (continued): Hon Daniel Mookhey claimed that the amendment should not pass and the battle for gender equality in NSW should continue.  Hon Penny Sharpe claimed that a broad discussion on prevention of sex selection was needed but not in the context of this bill.

Outcome:  Ayes 15, Noes 26 – the Amendment was lost.

Commentary:  When this amendment was passed the gallery showed its disdain vocally.  The hour was late and we were understandably frustrated that all academic evidence was ignored by 26 no-voters.

Set 13: Conscientious objection – full protection

Moved by:  Hon Mark Latham

Description:  Full protection for medical practitioners and other health workers who refuse to perform, assist in or facilitate an abortion.

For many people of faith working in the health system—Christians, Jews, Muslims, Hindus and others— that is the equivalent of being an accessory to murder. It is easy for an atheist like me and other MPs who have no faith to use sanitised language like “terminations” and “medical procedures” but for those… devoted to their God, abortion is murder. The bill as it stands forces doctors and health workers to facilitate murder according to their values, their ethos, their faith.

Hon Mark Latham MLC

Arguments for:  Hon Mark Latham argued for the protection of people of faith working in the medical profession by introducing an amendment “for a comprehensive, across-the-board conscientious objection provision”.  He stated that no one should be “morally” or “ethically” diminished because of the actions of government, likening such moves to a “police state”.

After The Hon Mark Latham presented his amendments, the Hon Niall Blair presented amendments on the same theme.  They were then debated together.

Set 13:  Conscientious objection – limited protection

Description:  A medical practitioner with an objection can give a person information approved by the Secretary of the Ministry of Health which includes contact details for a NSW Government Service which can facilitate a referral to health services including for termination.

Arguments for:  The Hon Niall Blair described his amendment as ‘easing’ the obligation on practitioners with a conscientious objection because it requires them only to refer to a service rather than facilitate a direct referral for termination.

Rev Hon Fred Nile placed on record his strong support for the Latham set of amendments, commenting on the risk that doctors with a conscientious objection will be driven out of the medial profession or discouraged from entering it in the first place due to an obligation to refer for abortions.  Hon Lou Amato set out strong arguments for Latham’s amendments quoting the new Hippocratic oath in full.  Hon Taylor Martin supported full protection rights describing the provision whereby a practitioner must refer as causing significant distress to doctors with conscientious objection.  Hon Natasha Maclaren-Jones argued that any woman seeking an abortion in NSW can find an abortion clinic without needing to force a doctor to make a referral against their conscience.  Hon Courtney Houssos supported the amendments by Latham and stated she was grappling with the second set.  She raised concern that an individual practitioner would feel that referring someone even to another health service, may feel they are enabling abortions.  Each of these MLCs went on to vote for both sets of amendments.

Hon Damien Tudehope strongly supported full protection for medical practitioners while rejecting the second set of amendments which could potentially drive practitioners out of the profession:

Do we really want to drive the only GP practising in a country town in New South Wales out of medical practice because he or she refuses, as a result of his or her reasoned judgement, that termination—in every case—is an unjust act that deprives the unborn child of its life, and refuses to hand a person requesting a termination contact details that will facilitate the performance of the termination? My father was a medical practitioner in a country town and I have to say he was a skilled doctor who never would have acted in a way that was contrary to or breached his conscience, even if it was in accordance with the law. If the law required him to do it he would have left town, thereby leaving the town without its doctor.

Minister Damien Tudehope

In some respects I believe the issue of conscientious objection—and I have thought carefully about whether it sits at the same level—sits just below the issue of the rights of the unborn child in the way it has been so utterly under‑considered and under-examined in the implication of what is proposed in the bill in its current form. There has been almost complete disregard for conscientious objection in the thinking brought by the five members of this Parliament who were responsible for putting the bill together in the first place. But I decided on balance that the right to life had to be above it because if you do not have life, you cannot exercise a conscience…

Hon Greg Donnelly MLC

The Hon Greg Donnelly then used his contribution to outline key submissions and testimony on the bill which addressed the area of conscientious objection in detail.  He was interrupted several times by co-sponsors of the bill during his contribution who were seeking to shut down his comprehensive overview.  However, he continued on, ending with commentary on in the invisibility of nurses in the debate and a report on the 1800 call facility which the second set of amendments would require a doctor to refer to.  Donnelly cited a woman who had called this line only to receive misinformation which was potentially dangerous.  He called the bill “deficient” and supported Latham’s comprehensive amendments.

It is important to note that Hon Damien Tudehope and Hon Greg Donnelly voted against the Blair amendments because they both held the view that this amendment required medical practitioners to facilitate abortions – albeit from a distance.

Hon Trevor Khan rejected Latham’s full protection amendments but supported Blair’s referral to a ‘generic provider of health advice’ claiming it provided an appropriate balance between patient’s care and protecting doctor’s religious freedom.  Hon Emma Hurst described Blair’s amendment as a “slight improvement”.  Hon Adam Searle described Latham’s amendments as “simply wrong” but appeared to reluctantly agree to Blair’s.  Hon Matthew Mason-Cox supported both sets of amendments.  Hon John Graham alluded to cases in rural areas where there is increased disadvantage in accessing health care as a reason to dismiss Latham’s amendments.  Hon Anthony D’Adam claimed to be ‘sceptical about most amendments’ but prepared to support Blair’s amendment which he described as a “fairly fine balance”.  Hon Penny Sharpe agreed to support the second set of amendments as well describing them as balancing conscientious objection as well as “continuity of healthcare for women in a safe manner”.

Hon Rose Jackson felt putting the onus on women to seek out an abortion clinic increased the likelihood of dangerous unsafe or even illegal abortions taking place.

Ms Abigail Boyd identified as “irreligious – without religion”.  She appeared confused over the Victorian legislation which mandates no rights to conscientious objection, instead claiming that the “in Victoria .. the exercise of conscientious objection has been used to make people feel doubt and guilt over their decision [to abort]”.  She then likened an abortion to “any other kind of reproductive healthcare option” such as birth control and oppose both sets of amendments.  Ms Cate Faehrmann described “this whole debate is a boy thing” and purported that both amendments favoured doctors over women.  Mr David Shoebridge rejected the amendments, claiming that they discriminated against women (and pregnant persons).

Outcome of Hon Mark Latham’s amendments:  Ayes 14, Noes 27 – the Amendment was lost

Outcome of Hon Niall Blair’s amendments:  Ayes 31, Noes 10 – the Amendment passed.

Set 14:  Informed consent and disability

Moved by:  Hon Greg Donnelly

Description:  To facilitate truly informed decision making, when a prenatal diagnosis of a disability is given, information about the support offered under the National Disability Insurance Scheme, an opportunity to speak to bodies which support people living with disability, and information on supports must be offered prior to termination.

Arguments for:  Hon Greg Donnelly spoke extensively on the rights of people with disability and the supports available in Australia.  He outlined that he amendment had the endorsement of both Down Syndrome Australia and the Australian Federation of Disability Organisations:  “The peak bodies honestly believe that if it is introduced and enabled to be propagated in the way that the provision is intended, it would advance the cause of the unborn with disability without in any way being determinative—notwithstanding our views about this and what is determinative of the decision of the woman who is pregnant. The woman who is pregnant will be making a decision. This is about the provision of information to enable that decision to be a complete one.”  Rev Hon Fred Nile supported the amendment, stating that to “eugenically discard [children with disabilities] before they are born is a terrible blight on our society”.

I do believe … in the sanctity of life. My daughter has Down syndrome and I have faced the situation of making this decision. For me it was very easy because it was not a decision that was a conflict for me or my wife. But it does give me some background and some experience that might be useful in the context of this amendment. I feel compelled to share that even though it is very personal to me and my wife. … When I was in that situation, it would have been great to have access to that support. But 13 years ago there was nothing available to me. I am a member of the New South Wales and ACT Down syndrome associations so I am aware of the issues. Some hospitals and facilities do better than others. Uniformity in this regard would assist people through this time. In that regard, it is not about passing judgement on others who find themselves in this position. It is not about, in the words of Ms Abigail Boyd, creating incredible personal offence. To be respectful to her, it is about providing information and support. It is not about being patronising or judgemental about people’s decisions. It is saying, “Here is some information. Make an informed decision.” That is what the amendment is about. 

Hon Matthew Mason-Cox

Hon Scott Farlow supported the “moderate amendment” presented, acknowledging the “enormous contribution” people with disability make to our society.  Hon Damien Tudehope supported the amendments, describing: “No-one, least of all the woman herself, is served by a decision made in haste and ignorance and before the understandable initial impact of an apparently adverse prenatal diagnosis has been followed by time for calm reflection based on all the relevant information.” 

Arguments against:  Hon Walt Secord felt that this amendment was an intrusion by a third party on a decision which should be between a woman and her doctor only.  Ms Abigail Boyd described it as “deeply offensive, not only to people with disability but also to people with uteruses”.  Hon Penny Sharpe opposed adding additional requirements to the bill.

Outcome:  Ayes 14, Noes 26 – the amendment was lost.

Set 15:  Professional standards and guidelines – Sex Selection

Moved by:  Hon Damien Tudehope

Description:  To draft guidelines and recommendations around the prevention of abortions on the basis of sex selection.

Arguments for:  Hon Damien Tudehope presented these amendments following his failed amendments the previous day.  These amendments require guidelines to be drafted to send a clear message from NSW Health that abortions on the sole basis of sex selection are not to be performed.  Hon Niall Blair supported the amendments which had been negotiated the previous night.  Hon Walt Secord stated that he would be supporting the amendment because it did not reduce or restrict a woman’s access to terminations in any form.  Hon Trevor Khan promoted the amendment as an example of cooperation amongst a diverse group of people.  Hon Scott Farlow described the amendment as providing “the force of law” required.  Rev Hon Fred Nile called it an “agreeable solution”.  Hon Greg Donnelly acknowledged the work which had gone into this amendment. Hon Courtney Houssos commended the move, citing public support.  Hon Mick Veitch said he would “reluctantly vote in favour” even though he does not believe sex-selective abortion is happening.

Arguments against:  Ms Abigail Boyd expressed disappointment that the Greens had not been consulted on the amendments, reiterated that sex selection abortions were not occurring (in her opinion) and described it as “farcical”.  Hon Penny Sharpe stated the need for a review mechanism, and praised the thoughtfulness of Hon Damien Tudehope then said she would not support the amendment.  Mr Justin Field thought the amendment made no sense because it pre-empted the research.  Hon Adam Searle stated he would not support the amendment because it represented the “heavy hand of government”.

Outcome:  Ayes 28, Noes 13 – the amendment passed.

Set 16: Data collection

Moved by:  Hon Niall Blair

Description:  Medical practitioners who perform an abortion must provide information within 28 days to the Secretary of the Ministry of Health.  Exactly what data is collected will be determined by the Secretary.

Arguments for:  Hon Niall Blair presented this amendment to address concerns that there is no consistent data set available.

After the Hon Niall Blair had presented his amendment, Hon Greg Donnelly presented his on a similar theme.  They were then debated together.

Set 17:  Reporting of Statistics

Moved by:  Hon Greg Donnelly

Description:  This amendment prescribed the type of data to be collected, including reasons for termination, method of termination, number of previous terminations the woman has had and the clinical estimate of gestational stage.  It also required these statistics to be published on an annual basis.

Arguments for:  Hon Greg Donnelly pointed to the jurisdictions of South Australia and Western Australia which collected, aggregate and regularly publish information on abortions.  He stated that this information can then be used to inform policy direction.

Arguments against:  Ms Abigail Boyd stated that the “Greens are big fans of data” however concluded that neither set of amendments would be supported because they were not in the interest of public health.  Mr David Shoebridge claimed that the amendments, particularly moved by Hon Greg Donnelly, were “clearly intended to gather data as a future weapon to attack the rights of pregnant people to make decisions about their bodies”.

Further arguments for both:  Hon Lou Amato supported the amendments noting that “the amendments protect the anonymity of the patient and healthcare provider. The sole purpose of the amendment is to ensure the wellbeing of women and identify ways in which women and families can be better supported by government services. The amendments do not in any way impinge on the privacy of a woman or a medical healthcare provider. Presently we do not have access to data, which would be valuable in identifying areas where the safety and wellbeing of women undergoing reproductive healthcare services can be improved”.  Rev Hon Fred Nile supported both, but emphasised his “priority” as being with the second set.

As legislators developing policy on issues, we should always prefer more data and detailed data. That is pretty much a truism for all of us. I support both the amendments before the Committee but the level of detail in the Hon. Greg Donnelly’s amendment is to be commended. It has the other benefit of requiring a report to be compiled each year and presented on the ministry’s website, which will make that information publicly available to all concerned.

Hon Matthew Mason-Cox

Hon Scott Farlow supported both with a preference for the more detailed amendments.

Arguments for Blair’s amendments only:  Hon Trevor Khan supported Blair’s amendments but rejected Donnelly’s as being too prescriptive – preferring to leave the data to be obtained up to the statisticians.  Hon Walt Secord supported the first set of amendments, commenting that the second set were too intrusive.  Hon Penny Sharpe acknowledged that data is important butt hat data must be collected in “good faith” implying that the amendments by Hon Greg Donnelly were suspicious in intent.

Outcome on Hon Greg Donnelly’s amendments:  Ayes 14, Noes 25 – the amendment was lost.

Outcome on Hon Niall Blair’s amendments:  Ayes 31, Noes 8 – the amendment was passed.

Set 18:  Review of the Act

Moved by:  Hon Matthew Mason-Cox

Description:  Review the Act in 2 years instead of 5 years.

Arguments for:  Hon Matthew Mason-Cox stated that because this is a heavily contested bill dealing with a life-and-death issue, the bill should be reviewed in a shorter timeframe.  (Interestingly, while not overtly stated, this would have brought the bill up for review within this same term of government).  Rev Fred Nile advocated for a review sooner rather than later, identifying the legislation as damaging to society.  Hon Greg Donnelly supported the amendment.

Arguments against:  Ms Abigail Boyd opposed the shorter review period stating that it was too short a timeframe to analyse the data (which she had just opposed the collection of).  Hon Penny Sharpe opposed on the basis of five year reviews being standard practice.  Hon Niall Blair also opposed changing the normal review period clause.

Outcome:  Ayes 14, Noes 25 – the amendment was lost.

Set 19:  Emergency definition

Moved by:  Hon Mark Latham

Description: To insert a definition of emergency as ‘necessary to prevent an imminent threat’ to the mother or another baby (ie twin).

Arguments for:  Hon Mark Latham advocated for a single consistent definition of ‘emergency’ within the legislation to give clarity to practitioners with a conscientious objection whose objections are overridden in cases of emergency.  Hon Greg Donnelly supported the amendment, noting “it makes eminent sense”.  Hon Matthew Mason-Cox claimed it was “absolutely appropriate” to gain “uniformity and clarity” through such an amendment. 

Arguments against:  Hon Penny Sharpe claimed the definition “significantly narrows the autonomy and ability of doctors to make an assessment” and as a result she could not support it.  Hon Trevor Khan believed the definition to be too narrow.  Ms Abigail Boyd claimed it was “overly prescriptive” and could lead to “unintended consequences”.

Hon Scott Farlow challenged those who felt the definition was too narrow to amend the amendment.  Subsequently, Hon Courtney Houssos moved to add “permanent incapacity of other serious injury” to the amendment.  Hon Mark Latham accepted this addition.  Rev Hon Fred Nile supported both amendments.

Outcome:  Ayes 14, Noes 25 – the amendment was lost.

Set 20:  Informed consent

Moved by:  Hon Lou Amato

Description:  Informed consent must be obtained “in accordance with the law”.

Arguments for:  Hon Lou Amato argued that this provided consistency ‘across the board’: “ If a woman is seeking an abortion, she should be fully informed as to the potential effects the procedure might have on her, both physically and mentally, as well as other potential options that are available to her. This is the current standard that the law mandates for other medical procedures and abortion should be no different”.  Rev Hon Fred Nile supported the amendment, stating that “M others should be fully informed of the consequences of their decision not only on the unborn child, but also on themselves”.  Hon Natasha Maclaren-Jones agreed that adherence to the law strengthened this area of the bill.  Hon Greg Donnelly agreed with the amendment which would clarify what he described as “poorly constructed and .. poorly worded” provisions in the bill.  Hon Matthew Mason-Cox applauded the amendment which put the law before guidelines which are easily changed.

Arguments against:  Hon Adam Searle opposed the amendment, claiming that it weakened the legislation.  Ms Abigail Boyd claimed there was no flaw needing to be addressed in this area.  Hon Penny Sharpe called the amendment “unnecessary”.  Hon Niall Blair opposed the amendment as did Hon Trevor Khan. 

Outcome:  Ayes 13, Noes 26 – the amendment was lost.

Set 21:  Insert criminal offences for terminations performed illegally

Moved by:  Hon Matthew Mason-Cox

Description:  to insert offences of up to 7 years imprisonment for practitioners who perorm or assist in an abortion which is not in accordance with the law

Arguments for:  Hon Matthew Mason-Cox proposed “this series of amendments is to ensure that medical and health practitioners who flout the requirements of the new abortion laws … are liable to be penalised”.  He advocated that this amendment would ensure accountability should regulations be breached.  Hon Greg Donnelly supported the amendment claiming that legislators should not compromise on protecting the lives of our loved ones by accepting less than this amendment.  Rev Hon Fred Nile supported “returning real accountability to negligent and reckless doctors”.

Arguments against:  Hon Trevor Khan claimed that doctors who perform terminations would be treated like any other medical professional, including being dealt with by the NSW Health Care Complaints Commission when in breach of their duty, and not through criminal penalties.  Ms Abigail Body described the amendment as “dangerous” because it viewed abortion as different from other medical procedures.

Outcome: Ayes 14, Noes 25 – the amendment was lost.

Set 22:  Coercion to have an abortion – ‘intimidation or annoyance by violence’

Moved by:  Hon Robert Borsak

Description:  to insert a criminal penalty for the use of intimidation or annoyance by violence or otherwise to compel a woman to have, or to abstain from having, an abortion

Arguments for:  Hon Rob Borsak asserted that women must be protected from coercion at this vulnerable time in their lives:

What astounds me the most about this bill, despite everything, is how little protection there is for the mother seeking a termination. The reasonable amendments that attempt to create these provisions are largely rejected. This is dangerous not only for mothers, but also for their unborn children. In this bill there is really only one option, and that is abortion. There is no channel of provisions that support pregnancy or the choice to have the child rather than abort it. This amendment changes that. This amendment makes it a criminal offence to compel another person to have a termination performed. Every woman should have the right to decide when it comes to pregnancy and abortion, but the ugly truth is there is a vast number of women who do not get that choice.

Hon Robert Borsak

After Hon Robert Borsak moved his amendment, Hon Penny Sharpe moved a set of amendments on a similar theme.  They were then debated together.

Set 23: Coercion to have an abortion – 2nd set

Moved by:  Hon Penny Sharpe

Description: This amendment differed in penalty to Set 22 – with a two-year imprisonment rather than a seven year term.  Apart from this, content was similar to the first amendment, with the addition of discouraging coercion on the basis of sex selection.  In her introduction to the amendment, the Hon Penny Sharpe spoke more about women who experience reproductive coercion, including where “pregnancy is used as a tool of control” as compared to the concerns of Hon Robert Borsak which focussed more on coercion to have an abortion.

Hon Trevor Khan opposed the Borsak amendments calling them vague and carrying too high a penalty.  Hon Niall Blair preferred the wording of Sharpe’s amendment.

Arguments against both:  Ms Abigail Boyd and Mr David Shoebridge opposed both amendments on behalf of the Greens.

Hon Lou Amato, Rev Hon Fred Nile and Hon Matthew Mason-Cox expressed support particularly for Borsak’s amendments.  Hon Damien Tudehope described his support:

The amendment moved by the Hon. Robert Borsak … ought to be supported by those who see a decision to terminate a pregnancy as a decision of the pregnant person alone. No other person is entitled to compel the pregnant person to undergo a termination of pregnancy, whether that person is an abusive partner, a parent concerned about the social shame of a teen pregnancy, an incestuous rapist trying to cover up evidence of his crime or the pimp of a trafficked woman or girl.

Hon Damien Tudehope

Hon Courtney Houssos described these as “very important amendments”, referring to combating the scourge of domestic violence.  Hon Greg Donnelly told a story of a woman ‘Maria’ who had begged him to vote against this bill because she had been forced to have an abortion in 1994 and continued to suffer the grief and loss from this traumatic event.

Outcome on amendments moved by Hon Robert Borsak:  Ayes 14, Noes 25 – the amendment was lost.

Outcome on amendments moved by Hon Penny Sharpe: Ayes 30, Noes 8 – the amendment was passed.

Set 24:  Pain relief for unborn babies

Moved by: Hon Greg Donnelly

Description: Pain relief to be provided for babies from 20 weeks or more when a termination is being performed to ensure that the baby does not feel pain.

Arguments for:  Hon Greg Donnelly used evidence from fetology to demonstrate that unborn babies feel pain from the mid-point of pregnancy.  He highlighted that surgeons operating on an unborn child use sedation to enable surgery to take place.  He also took the opportunity to provide detailed descriptions of how abortions from 16 weeks’ gestation occur to demonstrate the extreme pain being inflicted on the child.

Next contribution:  Ms Abigail Boyd described herself as “triggered in a completely unnecessary way, in my view, by that very descriptive contribution from the Hon Greg Donnelly” (referring to his detail on how abortions occur).  She claimed that fetal pain is a “medically unproven theory”.  Ms Boyd then described the amendment as a “brain fart of an amendment” which Hon Greg Donnelly interrupted to challenge. 

Arguments for:  Hon Lou Amato supported the amendment which he described as compassionate and humane.  Rev Hon Fred Nile described the ‘silent scream’ of a baby who moves away from abortion instruments.  Hon Scott Farlow and Hon Courtney Houssos supported the amendment.  Hon Matthew Mason-Cox claimed:

I strongly submit that it would be barbaric and inhumane not to respond to the proposition that has been put forward by the Hon. Greg Donnelly. It is incumbent on us as parliamentarians to consider the precautionary principle, to consider the evidence adduced, to note the realities of what has happened …, to note the realities of what happens in relation to in-utero surgery where anaesthetics are given, and to note the scientific studies that have been put forward today by various members. I believe it would be the most humane thing to accept this amendment

Hon Matthew Mason-Cox MLC

Arguments against:  Hon Emma Hurst claimed to have found “no conclusive evidence that an unborn fetus suffers pain”.  Mr David Shoebridge claimed that fetal pain is a consented area.  Hon Catherine Cusack also rejected the amendment claiming that it was not respectful to women.  Hon Penny Sharpe also spoke about the concerns of women and called the implication that this amendment was humane was “the biggest load of rubbish I have heard in this entire debate”.  Hon Mark Latham opposed the amendment because he believed it codified medicine in a clinical situation which sits outside the jurisdiction of parliament.

 Outcome:  Ayes 13, Noes 27 – the amendment was lost

Set 25:  Prohibition of sale of tissue  

Moved by:  Hon Natasha Maclaren-Jones

Description:  The sale or supply of foetal tissue resulting from a termination – to be prohibited.

This amendment was re-written from the one in the lower house which had been ruled outside the scope of the bill.  This ensured that the amendment was now accepted for debate.  The Chair officially overruled objections to it being tabled – which had been raised by the Greens – prior to the debate on this set.

Arguments for:  Hon Natasha Maclaren-Jones explained that NSW does not currently have a clause in this bill or any other act which would prevent the harvesting or sale of fetal tissue for commercial purposes with the exception of tissue used for the purpose of cloning.  She went through the cases in the US where tissue was sold and used for unethical research purposes.  Hon Lou Amato described the sale of fetal tissue as “morally reprehensible” in his contribution.  

This is a significant and important amendment. I am unequivocal about that statement because, whilst I had not been studying the area with the degree of specificity and attention that the mover of the amendment has, I have paid some attention to it over time….  There is plenty of evidence for those who have eyes on this that there is a world market, a global market, for human products. … I consider it utterly repugnant that tissue, organ or any other body product matter from an aborted fetus should in any way be introduced into what is effectively a research supply chain that can ultimately end up in the production of an end line product that is ultimately commercialised. 

Hon Greg Donnelly MLC

As a Christian and as the Leader of the Christian Democratic Party I strongly believe that all unborn babies deserve dignity, the right to life and respect. I am strongly opposed to abortion because of this. Tragically, many in this Chamber do not share this view and thus we are debating this amendment. The central tenet of this bill takes away the life of the unborn, let us not knowingly enable their dignity in death to be completely destroyed as well. I am supporting the amendment. May the babies be allowed to rest in peace.

Hon Rev Fred Nile

Arguments against:  Hon Trevor Khan claimed that rather than clearing up ambiguity, this amendment creates it.  Ms Abigail Boyd agreed and stated that this amendment was “inappropriate”.  Hon Adam Searle, Hon Walt Secord and Hon Emma Hurst believed the amendment was “unnecessary”.  Mr David Shoebridge claimed that the Human Tissue Act already outlawed trade in this area.  Hon Penny Sharpe stated this was not the right place for this amendment.

Outcome:  Ayes 14, Noes 25 – the amendment was lost.

Set 26:  Terminations after 22 weeks

Moved by:  Hon Damien Tudehope

Description:  Inserted additional restrictions to abortions post-22 weeks including that a specialist medical practitioner may ask for advice prior to a termination from a multidisciplinary team or hospital advisory committee and that guidelines would be issued in relation to late-term abortions.

Arguments for:  Hon Damien Tudehope explained these amendments as ensuring that late-term abortions would not expand under this legislation but would remain in line with current practice.  Hon Niall Blair supported the amendments because they codified current practice.  Rev Fred Nile supported “any attempt to mitigate” the “damage that will be done when” the bill is passed.  Hon Matthew Mason-Cox described them as the “art of compromise”.

Arguments against:  Ms Abigail Boyd opposed the restrictions this amendment would impose.  Hon Adam Searle claimed they were unnecessary.   Hon Rose Jackson opposed the amendment, believing that the current draft gave sufficient oversight.  Hon Walt Secord opposed them as unnecessary as well as “an attempt to give in to, appease or paper over something for the member for Mulgoa and the member for Riverstone”.

Outcome:  Ayes 23, Noes 17 – the amendment passed.


This concluded the extensive debate.  As the temporary Chair, Hon Shayne Mallard stated:  After five sitting days, 122 amendments, 26 divisions, and 30 hours and 24 minutes in the Committee of the Whole, the question now is that the bill as amended be agreed to.

The amendments were agreed to.

It was late at night and a handful of last minute speeches against the bill were made.  The house then divided on the final bill:

Outcome: Ayes 26, Noes 14 – the Bill (with Amendment) passed the upper house after 9pm on Wednesday 25th September.