What's Happening in Queensland?

On April 16, 2009, a young Queensland woman, 19-year-old Tegan Leach, was charged in the Cairns Magistrates’ Court with procuring her own abortion, and her partner Sergie Brennan, 21, was charged with attempting to procure and supply drugs to procure an abortion.

On 3 September a committal hearing in the Cairns Magistrates Court was heard by Magistrate Sandra Pearson to decide if the case should proceed to trial. 

On 11 September she committed both to trial, Tegan Leach on a charge of procuring an abortion and Sergie Brennan on a charge of supplying drugs to procure an abortion.

The allegations are that the couple decided to terminate the pregnancy because they considered they were too young to have a child. Apparently the young man’s sister arranged to obtain abortion drugs from a doctor in the Ukraine and smuggled them into Australia on a flight to Cairns on 25 December 2008. Sergie was familiar with the Ukraine having lived there. The pills were then successfully used to induce a miscarriage at 60 days. Police stated that packets with instructions in Ukrainian were found in the couple’s house when they conducted a search on 30 March. This search was as a result of another completely unrelatied craime - a murder no less. The couple are not implicated in this crime.

Initial press reports stated that the the drug misoprostol was imported, then RU486 (mifepristone) was mentioned. The latest reports are that a combination of the two drugs were used, the mifepristone being a Chinese version called Mifolian. This would make more sense as it is the combination that is most successfully used to induce a medical abortion.

It is not clear why the couple did not seek an abortion in Queensland. Since publicity about the case the couple have had to contend with violent acts presumed to originate from anti-abortionists. They have had to shift from their former home after it was fire bombed and the young man's car has been vandalised.

It’s the first time in over 50 years that anyone in Queensland has been charged with the offence of self-abortion, for which the maximum penalty is seven years’ jail. The boyfriend faces a penalty of up to 14 years for procuring an abortion and three years for supplying drugs.

Queensland’s abortion laws are based on English law dating back to 1861. So were New Zealand laws until we changed them in 1977-78. The Queensland laws are to be found in the Criminal Code sections 224-226.

Section 224 states that the person who performs an abortion commits a crime, liable to a maximum penalty of 14 years jail.

Section 225 states that for the woman self-abortion is a crime and so is allowing another to perform an abortion on her. Ms Leach has been charged under this section. 

Section 226 states that anyone supplying the means to procure abortion commits a crime. The maximum penalty is three years jail.

There is a defence in section 282 which allows a ‘surgical operation’ for the preservation of the mother’s life if the performance of the operation is reasonable under the circumstances. This was broadly interpreted by Mr Justice McGuire in the case of Dr Harry Bayliss and Dr Dawn Cullen in 1986. This is the case law on which doctors currently performing abortions in Queensland rely.

There are 14,000 abortions annually in Queensland and most are carried out as a surgical procedure in private clinics at a cost of about $370. The case has caused shock waves among pro-choice supporters. It is a reminder of how punitive the abortion laws can still be.

Another shock wave has been the announcement on 2 June 2009 by Cairns’ gynaecologists, Dr Caroline de Costa and her colleague Dr Michael Carrette, that they are stopping their medical abortion service because the case has made them aware that they and their patients may also be vulnerable to prosecution.

Dr Caroline de Costa was the first woman O&G specialist in Australia to be granted prescribing status for mifepristone after the law changed in February 2006 allowing it to be imported. She has been able to use it for medical abortions but only where there are medical indications for choosing this method. Legal opinion is that the defence in section 282 may not apply because it only refers to a ‘surgical operation’ being lawful.

Legal advice is that the doctors should not risk prosecution until the law is clarified. On 19 August the Queensland Solicitor-General advised Royal Women's Brisbane Hospital to cease medical abortions until the law was clarified.

This case has thrust abortion back into the public domain in Queensland and there are calls for state legislators to follow the lead from Victoria which decriminalised the abortion law in October 2008.

Protest activity from both public and professionals has had an effect. On 31 August Premier Anna Bligh proposed an amendment to the problematic Section 282. It was debated on 2 September and passed with both the government and the opposition supporting the change.  This has removed the ambiguity regarding the legality of medical abortions. Although it was also an opportunity to bring in more widespread changes with a private member's bill to decriminalise abortion this did not happen. 

Update: 7 October 2010. In July, a court date of 12 October 2010 was set for the trial. In subsequent months, pro-choice groups across Australia have increased their activity, including making plans for a national day of action, Saturday 9 October. 

Also in July, pro-choice groups in Australia called on the Queensland state government to a review the abortion laws by the Queensland Law Reform Commission in light of the Leach case. The government and premier Anna Blight refused, saying it would be up to a private member to introduce a bill to change the law.

Update: 15 October 2010: On Thursday 14 October, a Cairns jury took less than an hour to find Tegan Leach and Sergie Brennan not guilty of charges of procuring an abortion and supplying drugs to procure an abortion, ending the three-day trial. 

Pro-Choice Action Queensland issued a media release restating their commitment to continue the fight to repeal Queensland's century-plus old abortion laws. 

For further information or to offer support, visit www.prochoiceqld.org.au

Written by Margaret Sparrow

6 June, updated 1,7,10, 22 August, 2, 4, 11 September 2009; 7 Oct., 2010; 15 October 2010.