News: High Court grants injunction staying asylum seeker’s abortion

In breaking news, ABC News reports that the High Court has issued an urgent injunction restraining an asylum seeker from having an abortion. (The Commonwealth later clarified that she was in fact a refugee to whom a temporary protection visa has been granted). The woman, who is held on Nauru, had requested the abortion in Australia. However, she was flown out to Papua New Guinea yesterday to undergo the procedure, without any notice. She has sought a stay of the procedure because of doubts as to the legality of the procedure in Papua New Guinea.

In what follows below, I outline the law with regard to abortion in Papua New Guinea, and the test for an interlocutory injunction.

UPDATE: The transcript of the application before Keane J is now available.

Doubts as to the procedure in PNG?

Clause 255 of the Criminal Code Act 1974 (PNG) states that anyone who procures an abortion is guilty of a crime:

(1) A person who, with intent to procure the miscarriage of a woman, whether or not she is pregnant, unlawfully administers to her or causes her to take any poison or other noxious thing or uses force or any other means, is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 14 years.

(2) A woman who, with intent to procure her own miscarriage, whether or not she is pregnant–

(a) unlawfully administers to herself any poison or other noxious thing, or uses force or any other means; or

(b) permits any such thing or means to be administered or used to her,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

Clause 226 states that it is a misdemeanor to supply drugs or instruments to procure abortion:

A person who unlawfully supplies to or procures for any person any thing, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman, whether or not she is pregnant, is guilty of a misdemeanour.

However, a 1982 opinion by the Papua New Guinea State Solicitor apparently argued that abortion can be lawful in circumstances where doctors believe “termination of the pregnancy is necessary to preserve the woman from serious danger to her life, physical or mental health.” On this basis some private clinics offer abortions.

Presumably, in forming this opinion, the State Solicitor had recourse to Australian law on criminal sanctions against abortion. In R v Davidson [1969] VR 667, it was held that the qualifying word “unlawfully” meant that only some abortions were unlawful. It was not unlawful to procure an abortion where it was proportionate and necessary to preserve the woman from a serious danger to her life or her physical or mental health. Further, in a 1971 decision of the District Court of NSW, R v Wald (1971) DCR 25, concerning s 83 of the Crimes Act 1900 (NSW) (which is identical to the PNG Code), Levine DCJ expanded the list of factors which may make an abortion lawful to include social and economic concerns (subsequently affirmed in CES v SuperClinics (1995) 38 NSWLR 47 and R v Sood (Ruling No 3) [2006] NSWSC 762). Thus, there would presumably be room for a Papuan court to take guidance from Australian courts in this regard.

Nonetheless, the law in Papua New Guinea is far from clear, and there are reportely very few options for legal abortions in Papua New Guinea. Last year, it was reported that many Papuan women suffer adverse consequences from self-induced attempts to abort. Moreover, only last month it was reported that a wife and husband from Papua New Guinea have been gaoled for procuring an abortion for the wife at 16 weeks of pregnancy, after she was concerned that her health was at risk if the pregnancy continued. The case is due to be heard by the Papua New Guinea Supreme Court.

Interlocutory injunctions for abortion?

In order to obtain an interlocutory injunction, a plaintiff must first identify a legal, equitable or statutory right which the injunction supports, pursuant to ABC v Lenah Game Meats Pty Ltd. Then the court must consider:

  1. whether there is a ‘prima facie case’, pursuant to ABC v O’Neill; and
  1. the balance of convenience, taking into account the ramifications of the order for both the plaintiff and the defendant and the nature of the rights affected.

Interestingly, this is not the first time that the High Court has been asked to restrain an abortion. In Attorney-General (Qld) (Ex rel Kerr) v T (1983) 57 ALJR 285, 46 ALR 275, Gibbs CJ refused an application for an injunction to restrain an abortion. In that case, a Queensland woman had fallen pregnant after having a one-night stand with a friend. The father of the foetus sought to prevent her from having an abortion on the basis that it would constitute a crime pursuant to s 225 of the Criminal Code (Qld) (upon which the Papua New Guinean Code is based). Gibbs CJ refused to grant an injunction, saying:

It would seem to me quite unjustifiable, in the circumstances of the present case, to assume that the respondent would be convicted by a jury of an offence against s 225 of the Code if she proceeded to have an abortion, and on that assumption to interfere in the most serious way with her liberty of action.

The second argument is that an unborn child is to be regarded as a person whose existence can be protected by the courts. As at present advised, I would agree with the judgment of Sir George Baker P in Paton v BPAS Trustees [1979] 1 QB 276 at 279, that a foetus has no right of its own until it is born and has a separate existence from its mother. We are here, of course, not concerned with the questions that arise where damage to a foetus results in the birth of a damaged child, or with those cases in which a will is given a fictional construction, to give effect to the reasons and motives of the dispositions of the testator. But even if this view were wrong, I would not consider it a proper exercise of discretion to grant an injunction in the present case. As I have already said, to do so would be to act on the assumption that the respondent proposes to commit a serious crime, when the determination of that issue has been left by the law to a jury.

There are limits to the extent to which the law should intrude upon personal liberty and personal privacy in the pursuit of moral and religious aims. Those limits would be overstepped if an injunction were to be granted in the present case.

There are stark differences in the present case: the woman wants an abortion in Australia, but is concerned about having one in Papua New Guinea. If anything, the woman’s personal liberty is precisely what is at issue here. Moreover, given the recent gaoling of a Papuan woman for procuring an abortion, it seems that there may be a possibility that this woman is committing a crime.

The ABC reports:

Justice Patrick Keane said given the urgency and gravity of the situation for the woman and the fact there appeared to be an arguable case, he would the grant the injunction.

He ordered no steps be taken to bring about the termination or remove the woman from Papua New Guinea to anywhere but Australia.

Justice Keane also noted the issues raised in the case were not to do with the Immigration Act but rather were questions about duty of care.

Clearly Keane J was of the opinion that the woman’s case involved the Commonwealth’s duty of care to her, that she had a arguable prima facie case, and that the balance of convenience favoured the granting of the injunction (given that the ramifications to her if the abortion proceeded are potentially dire). It is suggested that Keane J made the right decision in the circumstances.

In any case, the parties have agreed that the case is to be remitted to the Federal Court for decision.

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About Katy Barnett

Katy Barnett is a Professor at Melbourne Law School. She has published extensively in the areas of private law and remedies, and is a co-author of ‘Remedies in Australian Private Law’ with Dr Sirko Harder. In 2016 she received the Barbara Falk Award for excellence in teaching.

3 thoughts on “News: High Court grants injunction staying asylum seeker’s abortion

  1. The plaintiff is a refugee, not an asylum seeker:

    “The plaintiff is a person who has been recognised as a refugee in Nauru and who accordingly has been granted a temporary settlement visa”

    • I’m aware that’s what the Commonwealth submitted, but initially it was reported that she was an asylum seeker, and her status seemed to be somewhat unclear. I will update to note that.

  2. The Age reports the case is now in the Federal Court, where the woman is still seeking transfer to Australia. Tragically, the woman at the centre of the case was assaulted while she was incapacitated by an epileptic fit.

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