The Human rights (children born alive protection) bill 2021

2019‑2020‑2021

The Parliament of the Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Human Rights (Children Born Alive Protection) Bill 2021

No.      , 2021

(Mr Christensen)

A Bill for an Act to protect children born alive (including as a result of terminations), and for related purposes

Contents

Part 1—Preliminary                                                                                                            

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 2

3............ Definitions.......................................................................................... 2

4............ Binding the Crown............................................................................. 3

5............ Extension to external Territories........................................................ 4

6............ Concurrent operation of State and Territory laws.............................. 4

7............ Constitutional basis of this Act.......................................................... 4

Part 2—Children born alive are persons                                                               

8............ Children born alive are persons.......................................................... 5

Part 3—Duty of health practitioners                                                                        

9............ Duty of health practitioners to provide medical care or treatment to children born alive as a result of terminations........................................................................................ 6

10.......... Offence of contravening duty to provide medical care or treatment to children born alive    7

11.......... Duty of health practitioners to report births of children born alive as a result of terminations               7

12.......... Mother of child born alive not liable to prosecution.......................... 8

13.......... Additional operation of this Part........................................................ 9

A Bill for an Act to protect children born alive (including as a result of terminations), and for related purposes

The Parliament of Australia enacts:

Part 1—Preliminary

1  Short title

                   This Act is the Human Rights (Children Born Alive Protection) Act 2021.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this Act

The day after this Act receives the Royal Assent.

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Definitions

                   In this Act:

born alive includes born alive as a result of a termination.

Convention on the Rights of the Child means the Convention on the Rights of the Child done at New York on 20 November 1989, as in force for Australia from time to time.

Note:          The Convention on the Rights of the Child is in Australian Treaty Series 1991 No. 4 ([1991] ATS 4) and could in 2021 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

engage in conduct means:

                     (a)  do an act; or

                     (b)  omit to perform an act.

health practitioner means a person who, under a law of a State or Territory, is registered or licensed to practice in any of the following health professions (or a recognised specialty in any of the following health professions):

                     (a)  Aboriginal and Torres Strait Islander health practice;

                     (b)  medical;

                     (c)  nursing.

health practitioner registration board means a person or body who, under a law of a State or Territory, registers or licenses persons to practice in a health profession (or in a recognised specialty in a health profession).

International Covenant on Civil and Political Rights means the International Covenant on Civil and Political Rights done at New York on 16 December 1966, as in force for Australia from time to time.

Note:          The International Covenant on Civil and Political Rights is in Australian Treaty Series 1980 No. 23 ([1980] ATS 23) and could in 2021 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

medical care or treatment: see subsections 9(4) and (5).

professional standards or guidelines includes:

                     (a)  an approved registration standard (within the meaning of the Health Practitioner Regulation National Law), or code or guidelines approved by a National Board (within the meaning of that Law); and

                     (b)  clinical guidelines issued by a State or Territory.

termination means an intentional termination of a pregnancy in any way, including by:

                     (a)  administering a drug or other substance; or

                     (b)  using an instrument or other thing.

4  Binding the Crown

                   This Act binds the Crown in each of its capacities.

5  Extension to external Territories

                   This Act extends to the external Territories.

6  Concurrent operation of State and Territory laws

                   This Act is not intended to exclude or limit the operation of a law of a State or Territory that:

                     (a)  protects:

                              (i)  children born alive as a result of terminations; or

                             (ii)  all children born alive; and

                     (b)  is capable of operating concurrently with this Act.

7  Constitutional basis of this Act

                   This Act gives effect to Australia’s international obligations under:

                     (a)  the Convention on the Rights of the Child, and in particular Articles 6 and 24; and

                     (b)  the International Covenant on Civil and Political Rights, and in particular Articles 24 and 26.

Part 2—Children born alive are persons

8  Children born alive are persons

                   To avoid doubt, for the purposes of the law of the Commonwealth, a child born alive is a person.

Part 3—Duty of health practitioners

9  Duty of health practitioners to provide medical care or treatment to children born alive as a result of terminations

             (1)  The duty owed by a health practitioner to provide medical care or treatment to a child born alive as a result of a termination is no different than the duty (including a duty under the law of a State or Territory or the general law) owed to provide medical care or treatment to a child born alive other than as a result of a termination.

Health practitioner registration board must deal with contraventions of duty to provide medical care or treatment to children born alive as a result of terminations

             (2)  Without limiting subsection (1), if a health practitioner engages in conduct that contravenes the duty owed to provide medical care or treatment to a child born alive as a result of a termination, a health practitioner registration board must treat the conduct in the same way as the board would have treated the conduct had the live birth not been the result of a termination.

Professional standards or guidelines

             (3)  Subsections (1) and (2) have effect despite anything to the contrary in professional standards or guidelines that apply to health practitioners.

Meaning of medical care or treatment

             (4)  A reference in this Act to medical care or treatment is a reference to medical care or treatment that is appropriate in the circumstances.

Example:    Depending on the circumstances, appropriate medical care or treatment could involve:

(a)    life‑saving emergency treatment; or

(b)    palliative care.

             (5)  For the purposes of subsection (4), in determining what medical care or treatment it is appropriate to provide to a child in particular circumstances, the fact that:

                     (a)  the birth of the child; or

                     (b)  any of those circumstances;

was a result of a termination is not relevant.

10  Offence of contravening duty to provide medical care or treatment to children born alive

                   A person commits an offence if:

                     (a)  the person is a health practitioner; and

                     (b)  a child is born alive; and

                     (c)  the health practitioner owes a duty to provide medical care or treatment to the child; and

                     (d)  the health practitioner engages in conduct; and

                     (e)  the health practitioner’s conduct contravenes that duty.

Note:          This section applies whether or not the live birth results from a termination.

Penalty:  2,000 penalty units.

11  Duty of health practitioners to report births of children born alive as a result of terminations

Purpose of this section

             (1)  The purpose of this section is to enable the production of statistics relating to children born alive as a result of terminations.

Duty

             (2)  If a child is born alive as a result of a termination, a health practitioner who:

                     (a)  caused the termination; or

                     (b)  is present at the birth;

must ensure that the birth is reported to the Department in accordance with subsection (3) within 5 business days.

             (3)  The report must:

                     (a)  be in writing; and

                     (b)  include the following information:

                              (i)  the date and place of birth;

                             (ii)  the gestational age of the child at birth;

                            (iii)  details of the medical care and treatment provided to the child after birth;

                            (iv)  whether the child survived; and

                     (c)  not identify the child or the child’s mother.

Offence

             (4)  A person commits an offence if:

                     (a)  the person is a health practitioner; and

                     (b)  a child is born alive as a result of a termination; and

                     (c)  the health practitioner has a duty to ensure that the birth is reported to the Department under subsection (2); and

                     (d)  the health practitioner engages in conduct; and

                     (e)  the health practitioner’s conduct contravenes that duty.

Penalty:  100 penalty units.

12  Mother of child born alive not liable to prosecution

                   Neither:

                     (a)  section 10 or 11 of this Act; nor

                     (b)  Division 11 of the Criminal Code, to the extent it relates to section 10 or 11 of this Act;

make the mother of a child born alive liable to be prosecuted for an offence in respect of that child.

13  Additional operation of this Part

             (1)  In addition to section 7, this Part also has effect as provided by this section.

             (2)  This Part also has the effect it would have if a reference to medical care or treatment were expressly confined to medical care or treatment undertaken by or on behalf of a corporation to which paragraph 51(xx) of the Constitution applies.