Post Covid: alcohol and the night time economy in the Sydney CBD

Sydney’s CBD has been bleak and empty the past few months, especially at night, but coronavirus restrictions in NSW are slowly easing.

From 1 June, pubs, clubs, cafes and restaurants can seat up to 50 customers (instead of the previous 10), provided businesses ensure social distancing of one person per 4 square metres, and no bookings of more than 10 persons.

If restrictions lift further, venues will likely begin to extend hours of opening and to kick start Sydney’s night time economy.

It’s worth noting the changes to service of alcohol laws introduced for the Sydney CBD late last year.

Complex changes to service of alcohol laws affecting licensed venues in inner Sydney were introduced following a series of alcohol-fuelled “one punch” attacks around 2013-14.

These controls included “lock-out” laws preventing patrons from entering licensed premises after 1.30am, restrictions on the use of glasses and on sales of certain kinds of alcoholic beverages after midnight, and an end to all liquor service at 3am.

Other controls included risk-based licence fees, and additional security and public safety measures, such as RSA (responsible service of alcohol) marshals, and mandatory ID scanning for certain venues.

See here for a review of those laws, and here for subsequent changes made following an independent review in 2016 conducted by former High Court Justice the Hon. Ian Callinan AC.

Opponents of Sydney’s lock-out laws have argued that these controls destroyed Sydney’s night life (and night-time economy).

In May 2019, the NSW Parliament established a Joint Select Committee to inquire into Sydney’s Night Time Economy, including the appropriate balance between community safety and health outcomes.

The Final Report recommended a number of changes that were subsequently implemented through the Liquor Amendment (Night Time Economy) Regulation 2019 (NSW).

Lock-out laws

The “lock-out” laws originally applied to prescribed “precincts” in the Sydney central business district, and Kings Cross.

During the lock-out period, new patrons were prohibited from entering the premises [hence “lock-out”], although patrons could remain on the premises, and leave at any time: see Liquor Regulation 2018 (as amended), s 89(4).

Section 89, as amended, retains the definition of a “lock-out period” to mean the time after 1.30am until 5am the next day.

The lock-out period has not changed, but the changes introduced in December 2019 provide that the lock-out law only applies to the Kings Cross precinct, not the CDB entertainment precinct: see here.

In Kings Cross, the lock-out restrictions continue to apply to hotels, clubs, licenced public entertainment venues and karaoke bars, and high risk venues (defined in s 116B(2) of the Act to mean hotels with patron capacity of more than 120 people that regularly operate after midnight), as well as “level 2” licensed premises that have had previous incidents of violence.

On the other hand, the Regulations allow a Kings Cross liquor licensee to seek an exemption to both the lock-out and liquor sales cessation restrictions: see here.

Liquor sales cessation periods

Section 90 of the amended Regulations deals with the “liquor sales cessation period”.

During a liquor sales cessation period, hotels, clubs, licensed entertainment venues and karaoke bars, high risk venues, and venues to which a level 1 or level 2 licence applies – must not sell or supply liquor: see s 90(3).

The December 2019 amendments have not changed the liquor sales cessation period for the Kings Cross precinct: it begins at 3am and continues to 5am.

For premises in the Sydney CBD Entertainment precinct, s 90 states that if the premises are declared to be subject to a level 1 licence (and there are currently no such licenses), then the same liquor sales cessation period applies: service of alcohol must stop at 3am.

But otherwise, service of alcohol can continue on to 3.30am.

Wind-back of other controls

Section 91 of the Regulations sets out additional controls that apply to after midnight trading (the “general late trading period”) in hotels, clubs, licensed public entertainment venues and karaoke bars in Kings Cross.

These additional controls also apply to premises in other precincts which are declared to be premises to which this clause applies – due to a history of alcohol-related violence, or violence causing serious injury.

These additional controls include the requirement that drinks cannot be sold in glasses and glasses must be removed from patrons.

So, unless they are a declared premises, licensed premises in the CBD don’t have to remove glasses after midnight.  This is another of the wind-backs.

Section 92 provides that, in addition, shots and other drinks containing more than 5% alcohol (but with the exception of cocktails) cannot be sold after midnight.

However, following the December 2019 amendments, this control no longer applies in the Sydney CBD.

On the other hand, controls designed to slow the rate of alcohol consumption (and sober patrons up) remain.  Between 2am and the beginning of the liquor sales cessation period, no more than 2 alcoholic drinks can be sold or supplied to a person, and no more than 4 drinks during the general late trading period (after midnight).

These controls have not been wound back: see s 92(5)-(6).  However, they do not apply to “small bars”, which may apply for extended trading authorisation to trade after midnight.

They illustrate the intent of the legislation, which is to reduce levels of alcohol consumption in large venues, and to encourage a small bar culture. Small bars can now cater to up to 120 patrons (s 39).

Venues in the CBD precinct are no longer required to have an RSA marshal supervise the responsible service of alcohol during the midnight to 3.30am period on weekends and after public holidays, unless they are a declared premises to which this requirement applies (Regs s 94).

On the other hand, the requirement for a “round the clock incident register” continues in prescribed precincts (s 96), and the requirement for CCTV in premises within the Kings Cross precinct remains (s 95).

The ban on motorcycle gang members wearing clothing or symbols that identify their club remains in both the CBD and Kings Cross precincts (s. 98).

The NSW Parliament’s Joint Select Committee found that “due to the historical nature of Kings Cross, venue density and the small size of the precinct, there is a high risk that if the 2014 laws were removed, violence would increase and the rate of assaults would begin to rise again” (p vi).  However, these controls will be reviewed within 12 months.

A final, significant change introduced in December 2019 was the extension of trading hours for take-away bottle shops.  The amended regulations now give an exemption until midnight for premises that are otherwise authorised to trade to 10pm: Regs s. 117.

Did the lock-out laws work?

In August 2019, the NSW Bureau of Crime Statistics and Research studied non-domestic assaults in the 62 months since the lock-out laws were introduced.

They found that non-domestic assaults were reduced by 53% in the Kings Cross precinct, and were reduced by 4% in the CBD precinct.

There was some displacement of violence to surrounding areas.

For example, non-domestic assaults rose by 18% in the proximate displacement area of Pyrmont, Ultimo, Chippendale, Surry Hills, Elizabeth Bay, and the Star City area.

It rose by more 30% in the non-proximate displacement area that included the suburbs of Bondi Beach, Coogee, Double Bay and Newtown.

But overall, the displacement was less than the reductions in violence that these laws achieved, meaning that overall violence was reduced by 13.3%.

Hospital admission statistics are another way of gauging the success of alcohol control laws in the inner city.

A study published in 2018 by The Medical Journal of Australia reported a 10% reduction in the number of violence-related fractures and a 7% reduction in drug and alcohol-related fractures presenting at St Vincent’s hospital.

These reductions suggest that changes to alcohol trading hours – including lock-outs, liquor sales cessation periods, and bans on late-night take-away liquor sales – were part of an effective package for reducing alcohol-related violence.

As with tobacco controls, it can be difficult to definitively quantify the specific contribution of each measure to the reduction in violent assaults.  It is the overall impact of the package of controls that speaks.

At the time the package of lock-out laws were introduced – after multiple, sickening, unprovoked attacks – there was a political imperative for action.

The Government had to do something, and it did.

It’s now five years later.  What strikes me is that the wind-backs introduced in December are relatively modest.

It remains to be seen what impact they will have on incidents of alcohol-related violence, and whether, in particular, they have created incentives for the kind of cultural change that is needed to ensure a safe, but late-night economy in Sydney.

Are you interested in studying health law?  Sydney Law School offers a Masters and Graduate Diploma in this area.  You can start in either the March, or July/August semester.  Click here, or here, for more information.

 

Who’s in control of Australia’s response to coronavirus? Part 2: Operational responses

For part 1 of this post, click here.

One reason why there is a measure of confusion about operational control during an outbreak of disease with pandemic potential is because of the different functions and responsibilities of the Commonwealth, and the States within a federation.

For example, even if the (modest) number of cases meant that an outbreak could be comfortably handled as a jurisdictional health challenge, the fact remains that early cases are likely to be imported into Australia, and border control is a Commonwealth responsibility (see eg the “National CD Plan”, pp 8-12).

Similarly, sharing information with WHO about cases of covid-19 (a declared public health emergency of international concern) is both an obligation under the International Health Regulations and a Commonwealth function, via the National Focal Point (as to which see National Health Security Act 2007 (Cth) s 10).

It might be helpful to think about the escalation of government responses to a disease outbreak in terms of the following stages:

Although an outbreak may begin as a jurisdictional health challenge, the Commonwealth may become involved in coordinating and supporting the State/Territory response where there are “Communicable Disease Incidents of National Significance”.

As shown below, Commonwealth involvement may involve an escalation of governance arrangements in order to ensure a coordinated health sector response, or, in addition, to ensure a broader national response extending beyond the health sector requiring leadership at the highest political levels.  This is shown below.

[Source: Emergency Response Plan for Communicable Disease Incidents of National Significance: National Arrangements (“National CD Plan”) p 4]

 

A national health sector emergency

The distinctions set out above help us to understand the significance of the Australian Health Sector Emergency Response Plan for Novel Coronavirus (COVID-19), published on 18 February.

The “Coronavirus Emergency Response Plan” signals the existence of a national health sector emergency, based on anticipation of the potential for significant cases of community transmission to put pressure on State and Territory health systems.

The Prime Minister announced the implementation of the “Coronavirus Emergency Response Plan” on 27 February, triggered by advice that the world would shortly enter the pandemic phase of covid-19.

The Plan explains the division of responsibilities between the Australian government, and the States and Territories, with respect to planning, surveillance, clinical services, public health measures, research and planning, and communication.

The Australian Health Protection Principal Committee, which comprises State and Territory Chief Health Officers and is chaired by the Australian Chief Medical Officer, is the key decision-making committee, within the health bureaucracy, for health emergencies.  It is now meeting virtually daily and its statements on covid-19 are shown here.

In common with other plans, the Coronavirus Emergency Response Plan conceptualises the management of hazards in terms of a cycle of activities focused on: Prevention; Preparedness; Response; and Recovery.

Australia is currently in the response phase to the coronavirus (obviously).  This phase is usually divided into three further stages:

  • standby
  • action: initial action, and targeted action
  • stand down

The Plan identifies three scenarios: where clinical severity is low, moderate and high.  It also points out that progress through the stages above (eg from Initial action to Targeted action) is independent of “activation of whole-of-government or jurisdictional plans”.

 

An all-of-government response to a national health emergency

By 27 February, the day on which the Coronavirus Emergency Response Plan activated a nationally-coordinated health sector response, an all-of-government response to coronavirus was also emerging, through the National Security Committee and the Council of Australian Governments (COAG).

The Prime Minister explained the role that the Border Force Commissioner, and the Ministers for Education, Home Affairs and Treasury were taking in strengthening the national response.

The Health Minister explained that the focus of the national response was moving from containment to planning for a significant increase in cases of community transmission – by focusing on the sufficiency of the national medical stockpile and personal protective equipment, and the capacity of health personnel to manage a surge in cases and hospital admissions.

On 5 March, the Prime Minister revealed that the Australian Government had activated the National Coordination Mechanism, through the Department of Home Affairs: its role was to work with the states and territories to “co-ordinate the whole of government responses to issues outside the direct health management of COVID-19”.

Finance ministries now sit at the centre of Australia’s response to the coronavirus, attempting to mitigate the impact of sharp reductions in economic activity, spending and consumer confidence with first federal, and now state/territory stimulus packages.

The Commonwealth has also agreed to share the additional costs incurred by States and Territories in diagnosing and treating coronavirus patients, on a 50/50 basis.  (This National Partnership Agreement would operate from 21 January – the date that coronavirus became a Listed Human Disease under federal biosecurity laws).

The “National CD Plan”, which underlies these all-of-government efforts, was published in May 2018 and illustrates just how complex the response to “communicable disease incidents of national significance” really is.

On 13 March, the Prime Minister announced a “new National Cabinet, made up of the Prime Minister, Premiers and Chief Ministers” that will “meet at least weekly to address the country’s response to the coronavirus, COVID-19”.

This new cabinet will be advised by the Australian Health Protection Principal Committee (addressing health sector issues), and the National Coordination Mechanism convened by Home Affairs (addressing issues beyond the health sector).

Within the space of a few weeks, human coronavirus has gone from being a jurisdictional health challenge to precipitating new, creative cabinet structures to address its multi-sector impacts.

Who’s in control of Australia’s response to covid-19?  Currently, a “war cabinet” comprising the leaders of all Australian governments.

Who’s in control of Australia’s response to coronavirus? Part 1: Legal frameworks

The situation in Australia with human coronavirus is deteriorating.

454 cases so far, and 5 deaths, but cases are rising rapidly.  See here for updates.

Globally: 6,800 deaths and rising.

Australia’s Chief Medical Officer – Australia’s Director of Human Biosecurity – has advised the Council of Australian Governments (COAG) that gatherings of more than 500 people should be cancelled.

Social distancing measures are likely to be strengthened in future.

Anyone entering Australia must self-isolate for 14 days.

Universities like mine are migrating their teaching online, in order to support social distancing efforts.

So who is running Australia’s response to covid-19?

Usually, when a disease outbreak occurs, it is dealt with by States and Territories using their own processes and resources.

As the scale of the threat, or impact, of an outbreak increases, State/Territory actions may be supplemented by national coordination and resources, within – and beyond – the health sector.  State and federal Health Ministers may also formally declare a state of emergency, clearing the way for the exercise of potentially broad, executive, emergency powers.

Australia has robust operational plans and legislative frameworks for managing outbreaks.

But tracking government actions in terms of those plans, and relating actions back to the underlying legislative framework, is more difficult than it ought to be.

The distinctions between the various stages of the response are important because public health officials and political leaders may be exercising different legislative powers, and the public interests involved (including restrictions on civil liberties) will be balanced in different ways according to the scale of the threat and response.

Significant penalties may also be imposed for failure to comply.

Australia has a complex federal system.  In understanding Australia’s response to coranavirus, I think it helps to distinguish between the activation and escalation of operational plans and frameworks, and the activation and escalation of legal powers.

This is Part 1 of a two-part post.

Jurisdictional health challenge: public health legislation

States and Territories have primary responsibility for responding to disease outbreaks under the Public Health Acts (in NSW, the Public Health Act 2010, and its regulations).

Key state functions include investigating possible cases, contact tracing, collecting surveillance data, treating sick patients, and public communications.

As mentioned in a previous post, “Novel Coronavirus 2019” was scheduled under the Public Health Act 2010 (NSW) by executive order on 21 January.

This made covid-19 a reportable disease in NSW, both by medical practitioners and laboratories.  Persons with covid-19 must take precautions, they may be directed to undergo medical examination, and they may be subject to public health orders where their behaviour poses a risk to public health.

Distinct from declaring a public health emergency, the Public Health Act 2010 also gives the Health Minister a broad power to give directions to reduce risks to public health (s 7).

Consistent with advice from the Commonwealth Chief Medical officer (Dr Brendan Murphy), on 15 March the NSW Health Minister issued an executive order prohibiting major events that involve 500 or more people.

The NSW Health Minister has a similar power to issue executive orders to reduce public health risks during a state of emergency. However, unlike Victoria, NSW has not declared a State of emergency, and may not need to, given the power contained in PHA section 7.

Escalation: national biosecurity laws

Australia’s first case of covid-19 was reported by federal Health Minister Greg Hunt MP on 25 January, in a man who flew from Guandong to Melbourne.

On that date, Minister Hunt advised that “Human coronavirus with pandemic potential” had already been declared a “Listed human disease” under the Biosecurity Act 2015, “enabling the use of enhanced border measures”.  [See here for the current legislative instrument setting out the full set of Listed Human Diseases].

The listing of coronavirus also led to the activation of the National Incident Centre, and regular meetings of the Australian Health Protection Principle Committee – the key decision-making committee for public health emergencies.

Declaring that a disease is a “listed human disease” Under the Biosecurity Act 2015 (Cth) is a condition precedent to the Health Minister imposing enhanced border measures.  These may encompass specific entry and exit requirements (ss 44-45), restrictions on incoming aircraft (s 49), and preventive biosecurity measures (s 51).

For example, individuals arriving on airplanes or vessels subject to biosecurity control may be required to be screened to determine if they have been infected or exposed to a listed human disease: see s 44 and Biosecurity (Entry Requirements) Determination 2016, s 6.

As explained in a previous post, the listing of coronavirus is also a condition precedent to the imposition, by human biosecurity officers, of biosecurity control orders on individuals.

These orders may encompass a range of specific measures, such as a requirement to remain at home (s 87), to provide body samples for analysis (s 91) or remain isolated at a specified medical facility (s 97).

The powers in the federal Biosecurity Act go well beyond those in the NSW Public Health Act in terms of seeking to balance the precautionary principle with the requirement for proportionality and the least restrictive alternative.

Subject to the appointment of state and territory public health officials as human biosecurity officers under the Biosecurity Act 2015, as envisaged by ss 562-566, these federal powers could be exercised and enforced.

Nevertheless, on a number of occasions Dr Murphy has suggested he will not exercise his coercive powers.

In a press conference on 29 January, he said: “For returned travellers from Hubei province, we are asking for them to remain isolated. We don’t intend to use enforcement powers”.

More recently he stated: “Under the Biosecurity Act in most cases I can compel people to have tests or be detained if they’re a biosecurity risk”. “[B]ut we don’t use those powers and hope never to use them.  People are generally co-operative”.

Statements like this may be an attempt to calm people and to encourage voluntary cooperation, or might instead reflect the assumption that the States have adequate powers to enforce compliance with biosecurity controls.

Nevertheless, assuring people that biosecurity controls are voluntary is unhelpful if a deteriorating situation later compels their use.

It’s vital for the public to know when their cooperation is voluntary and when disobedience could result in penalties.

At any rate, it’s clear that since 21 January – when it became a “Listed human disease” under Commonwealth law, “human coronavirus with pandemic potential” ceased being simply a jurisdictional health challenge.

Escalation: national state of emergency?

Under the Biosecurity Act 2015, the federal Health Minister may exercise broad, emergency powers where the Governor General has declared that a “Listed human disease” constitutes a “human biosecurity emergency” (chapter 8, Part 2).

This is no longer an unrealistic scenario if Australia’s situation deteriorates.  If the sharp rise in cases continues, it could support the case for mandatory, strengthened social distancing measures, agreed to by the National Security Committee and implemented by an executive instrument signed by the Health Minister (see ss 477-478).

The case for declaring a national state of emergency might also arise if the surge in cases of covid-19 overwhelmed the capacity of the health care system to treat cases effectively.

I’m surprised that schools are still open in NSW and that more limiting social distancing measures have not been put in place.

The Australian Health Protection Principal Committee, not to mention the National Security Committee, will be deliberating these matters, informed by models of likely spread if various drastic – and not so drastic – restrictions are imposed.  Keeping the economy running, and businesses solvent, is also critical.

The reason we know that Australia is currently experiencing a surge of cases of community transmission is because, on 11 February, the Chief Medical Officer added “Human coronavirus with pandemic potential” as a temporary addition to the National Notifiable Disease List, formalising national reporting by the States and Territories.

Despite industry objections, alcohol and pregnancy warnings will be mandatory in Australia and New Zealand

The food regulator, Food Standards Australia New Zealand (FSANZ) has finalised the form of the alcohol and pregnancy warning label that will be mandatory on packaged alcohol sold in both countries.

Assuming the States do not request a further review, the new warning will be added as an amendment to Standard 1.2.7 of the Food Standards Code and will become mandatory after a two year transition period (see pp 6, 78 here).

Here it is.

It’s been a long time coming

In 2011, the Australian and New Zealand Food Regulation Ministerial Council commissioned a review of food labelling law and policy, chaired by Neil Blewett AC.

The committee’s report, co-authored by Australian public health law pioneer Chris Reynolds, is a terrific document, although increasingly difficult to locate online.

The Committee saw no reason to exempt alcohol from labelling requirements, in view of evidence relating to the risks of binge drinking and longer-term over-consumption.

(In 2015, alcohol use was responsible for more than 6,300 deaths in Australia, or 4% of total deaths – see AIHW, Australian Burden of Disease Study 2015, Table D2, p 167)

Amongst many sensible recommendations, the report recommended that “generic alcohol warning messages should be placed on alcohol labels” as part of a broader, multifaceted, national campaign addressing alcohol-related harm [recommendation 24].

Secondly, it recommended that a mandatory warning about the risks of drinking while pregnant should be included on “containers of alcoholic beverages and at point of sale for unpackaged alcoholic beverages” [recommendation 25].

Thirdly, it recommended that alcoholic beverages should not be exempt from energy labelling requirements that apply to packaged food under Standard 1.2.8 of the Food Standards Code [recommendation 26].

The Government’s response to the review is here.

Added momentum for a warning label about the risks of drinking while pregnant came from a Parliamentary inquiry in 2012 into the Prevention, Diagnosis and Management of Fetal Alcohol Spectrum Disorders.

The Foreword to this report, from the House of Representatives Standing Committee on Social Policy and Legal Affairs, states:

“FASD [fetal alcohol spectrum disorders] is an entirely preventable but incurable condition caused by a baby’s exposure to alcohol in the womb. The consequences are expressed along a spectrum of disabilities including: physical, cognitive, intellectual, learning, behavioural, social and executive functioning abnormalities and problems with communication, motor skills, attention and memory.”

The lifetime cost of for one person with FASD in the United States is at least UD$2 million (see FASD Strategic Action Plan 2018-2028, p 8).

The Standing Committee recommended that the Commonwealth implement – by 1 October 2013 – a mandatory warning label advising women not to drink when pregnant or planning a baby on packaging of all pregnancy test kits (Recommendation 7).

This recommendation has not been implemented.

The Committee also recommended implementation – by 1 January 2014 – of a warning label for all alcoholic beverages advising women not to drink while pregnant or planning pregnancy (Recommendation 11).

FSANZ has now finalized this warning – for packaged alcohol.  A warning about drinking while breastfeeding was outside the scope of this work.

It should have been a non-brainer

The Australian Institute of Health and Welfare reports that in 2016, around 35% of Australian women drank while pregnant.  One in four women who were unaware of their pregnancy continued to drink after they found out.

In this age of personal responsibility, alcohol and pregnancy warning labels ought to be a no-brainer, but it has taken until 31 January 2020 for Food Standards Australia New Zealand to approve a mandatory health warning and graphic for alcoholic beverages that contain more than 1.15% alcohol by volume.

For detail of the amendment to Standard 2.7.1, which governs labelling of alcoholic beverages, see here (pp 100-104).

The Australian and New Zealand Ministerial Forum on Food Regulation, which is responsible for developing food regulation policy, had earlier, in October 2018, requested FSANZ to consider options for mandatory alcohol and pregnancy warning labels.

Getting FSANZ involved was a good idea – long overdue.  FSANZ is a technical, a-political agency that reviews evidence, considers options and develops the mandatory technical standards that make up the Food Standards Code.

A methodical, evidence-based, bureaucratic process has significant advantages in areas of regulation prone to lobbying and interference from well-resourced industries.

The internet remembers

Draft (updated) National Health and Medical Research Council (NHMRC) Guidelines clearly state:

“A To reduce the risk of harm to their unborn child, women who are pregnant or planning a pregnancy should not drink alcohol.

B For women who are breastfeeding, not drinking is safest for their baby.” (p 47)

In 2018, DrinkWise, a responsible drinking campaign largely funded by the alcohol industry, distributed a poster to hospitals and GP clinics around the country that said: “It’s not known if alcohol is safe to drink when you are pregnant”.

This was widely criticised; even the New York Times ran a story.

DrinkWise re-phrased its poster (see below).

DrinkWise now has a new campaign called “The internet remembers”.

Indeed.

Alcohol industry objections

The Approval Report for the new warning label lists the concerns raised by the alcohol industry, together with FSANZ’ response.  The warning FSANZ chose was: “Alcohol can cause lifelong harm to your baby” – which performed better in consumer testing than “Any amount of alcohol can harm your baby”.

For its part, the alcohol industry suggested that the text of the warning should be “It’s safest not to drink while pregnant” as “medical knowledge is not settled whether drinking small amounts [while pregnant] has a bad influence [on the foetus] (see p 44 here).

Industry was also concerned that the words “HEALTH WARNING” were “misleading, inflammatory and may alarm consumers” (p 26).  It recommended changing “HEALTH WARNING” to “DRINK RESPONSIBLY” (p 28).

FSANZ noted, unsurprisingly, that such a change would “not meet the intended purpose of the pregnancy warning label to reinforce public health advice and messaging not to drink alcohol while pregnant”.

Industry also objected to the red font required for “HEALTH WARNING”, on the basis that it would inflate costs.  It requested a monochromatic label (p 44).  It wanted the label to be smaller (p 29).  It felt the cost of the label was not proportionate to the benefit (pp 33-34).

Industry sought a longer phase-in period of up to 5 years, rather than the 2 years proposed by FSANZ (p 36).

Overall, while the alcohol industry was “fully supportive of interventions that are proportionate, well evidenced and shown to be effective at changing harmful consumption behaviours”, it was “concerned about the lack of rigour of the proposal in this regard” (p 43).

Its objections even extended to the ponytail in the graphic of the woman (p 24).

Overall, the impression you get is of an industry keen to reduce the consumer impact of the warning, keen to delay its implementation, and far more interested in revenue than the harm its products can cause the next generation.

No surprises there, unfortunately.

Legal management of the novel Coronavirus (2019-nCoV) in Australia

On 31 January the Director-General of the World Health Organisation, Dr Tedros Adhanom Ghebreyesus declared the novel coronavirus (2019-nCoV) a public health emergency of international concern (PHEIC), following the advice of the Emergency Committee.  (See here).

Under the International Health Regulations, which govern global management of infectious disease outbreaks, a declaration that a PHEIC exists is a prerogative of the Director-General, and triggers the requirement to issue temporary recommendations, after receiving information from the Emergency Committee (See IHR, Arts. 15, 49).

You can see the WHO Director-General’s recommendations to the People’s Republic of China here. (And see here for the most recent WHO situation reports).

2019-nCoV was first identified in Wuhan, China, around 12 December.

As at 6 February 2020, over 28,060 cases had been identified in China, with 564 deaths; 24 countries outside China have also identified cases, with one death confirmed in the Philippines.

In Australia, as at 6 February, 15 cases of 2019-nCoV had been identified in 4 States: 5 in Qld, 4 each in NSW and Victoria, and 2 in SA.  You can see latest updates for Australia, and other resources here.

You can see a timeline of events from Australia’s perspective here, and from a US perspective here.

From a legal perspective, how is Australia managing the risks posed by 2019-nCoV?

Australia has imposed travel restrictions on foreign nationals departing from or transiting mainland China.  These apply for 14 days from 1 February, and may well be extended.

There are no exceptions for Chinese (international) students studying at Australian universities or attending Australian schools: almost two thirds of the 190,000 Chinese students who have Australian visas are still overseas.

Australian citizens currently in China are permitted to re-enter Australia, but must self-isolate for 14 days.  This means not attending public places including work, school or university, or childcare, not allowing visitors into the home and wearing a surgical mask if it becomes necessary to leave the home for medical treatment.  See here.

With the exception of the blanket travel ban, which a number of other countries including New Zealand, and the United States have also imposed, Australia’s response remains low-key.

States and Territories are primarily responsible for managing outbreaks of infectious diseases within their territories, and this remains the case with 2019-nCoV.

The Commonwealth, on the other hand, has “primary responsibility for international border surveillance and responding to public health events occurring at international borders”: see the National Health Security Agreement (para 22).

The Australian Government Department of Health website states that:

The Australian Health Protection Principal Committee has taken a highly precautionary approach in recommending the 14-day isolation period, with the aim of this policy being containment of novel coronavirus and the prevention of person- to-person transmission within Australia.”

Australia has not yet imposed centralised control or activated the coercive powers that are available if this outbreak were to gain momentum.

In Australia, the Australian Health Protection Principal Committee (AHPPC) is the peak body for national emergency health planning, preparedness, response and recovery during public health emergencies.  AHPPC is administered by the Office of Health Protection, a division of the Australian Department of Health.

The National Health Security Agreement identifies a number of potential triggers for a coordinated national response, led by the AHPPC, with operational control vested in the Director of Human Biosecurity.  However, it remains for the Commonwealth to assess whether the risks of disease transmission are so significant that they require a centralised, national operational response (see para 24).

An audit of the Health Department’s coordination of communicable disease emergencies notes the relative ambiguity of the conditions that would justify a national operational response (see pp 30-33, 47).

With travel bans keeping imported cases to a minimum, and limited scope for significant person-to-person spread within Australia, the States and Territories will very likely continue to retain operational control.

The Biosecurity Act 2015 (Cth) does give the Commonwealth a wide range of coercive powers, where necessary.

For example, under ss. 44-46, entry and exit requirements (as distinct from recommendations) may be imposed on classes of people to prevent the spread of a “listed human disease”, and there are civil penalties for failing to comply.

Similarly, individuals can be subjected to a “human biosecurity control order” containing any of a number of specific “biosecurity measures”, including isolation measures (s 97), restrictions on movement and behaviour (s 87), and the requirement to undergo examination and provide body samples (ss 90-91).

However, as s 44(1) and s 60 makes clear, these powers apply to a “listed human disease”: they exist to prevent a “listed human disease” from entering or spreading in Australia.

Section 42 contains the test that the Director of Human Biosecurity (the Commonwealth Chief Medical Officer) must apply before he or she lists a human disease.  (The test is whether the disease is communicable and may cause significant harm to public health, and if the Director of Human Biosecurity has consulted with the chief health officers of the States and Territories.)

While there is nothing in principle to prevent the Chief Medical Officer from issuing a legislative instrument making 2019-nCoV a listed human disease under s 42, I am not aware that this has happened.

Nor does it appear that 2019-nCoV has yet been added to the National Notifiable Disease List: the national set of diseases that is the result of national reporting arrangements by the States and Territories (see National Health Security Act 2007, s 11).

This does not mean that self-isolation “recommendations” are voluntary.  It simply means that cases or contacts entering Australia are subject to the relevant State or Territory legislative framework that governs disease spread.

In NSW, “Novel Coronavirus 2019” was scheduled under the Public Health Act 2010 (NSW) by executive order on 21 January.  As a result, a number of statutory obligations and public health powers thereafter apply to identified cases, and to those who have come in contact with a case.

For example, 2019-nCoV is notifiable by medical practitioners and laboratories (ss 54-55).  A person infected with 2019-nCoV who is in a public place must take reasonable care not to spread the condition (s 52), and the Secretary of the NSW Health Department may direct a person to undergo medical examination on reasonable suspicion that they represent a risk to public health (s 61).  There is a financial penalty for non-compliance.

If a person who is infected with or has been exposed to 2019-nCoV is behaving in a way that will likely endanger the public’s health, the Chief Health Officer of NSW can make a public health order requiring the person to refrain from behaviour that places others at risk and to undergo medical treatment and testing (s 62).

These are time-limited orders not exceeding 28 days (s 63) which can be reviewed by the Civil and Administrative Tribunal and, where necessary, extended (ss 65-66).  Failure to comply with a public health order may result in a substantial fine (up to $11,000) or imprisonment.

These muscular State (and Territory) laws are, of course, premised on an infectious condition being scheduled under the Act, and on there being an adequate case definition to identify cases and contacts.

Early on in an outbreak of a novel infectious disease, a precise, workable case definition may not exist, together with information about modes of transmission, incubation period (prior to symptoms) and capacity for pre-symptomatic transmission.  See here for the somewhat unwieldy definition of a “suspect case” of 2019-nCoV adopted in NSW, and Victoria, respectively.

Are you interested in studying health and medical law?  Click here or here, for more information.

Australia and the language of fire

There are currently 100 fires burning across New South Wales.  Fifty of them are uncontained, as the weather swings between baking hot, and blustery southerlies.

Here in Sydney, the sky looks yellow.  Soot is washing up on Sydney beaches, and clouds of dust are turning New Zealand glaciers pink.

According to the Bureau of Meteorology (BOM):

“Climate change is influencing the frequency and severity of dangerous bushfire conditions in Australia and other regions of the world, including through influencing temperature, environmental moisture, weather patterns and fuel conditions. There have been significant changes observed in recent decades towards more dangerous bushfire weather conditions for various regions of Australia.”

BOM is not a political organisation, but an executive agency of the Australian Government, established in 1906, charged with providing weather services and advice.

See here for a joint BOM-CSIRO assessment of the State of the Climate, or read this NASA assessment.

 

The politicisation of fire

Fire affects Australians of all political persuasions.  It shouldn’t be politicised.

But that’s exactly what’s happening because what we do in response to bushfire risk intersects with economic policies and entrenched economic interests.

Twenty-three former fire and emergency Commissioners have been trying to meet with the Prime Minister since April, warning that Australia is ill-prepared for the growing severity of climate-influenced bushfires, and calling for an inquiry into how expensive, national firefighting assets might be funded and managed.

You can read their statement here.

The Prime Minister – famous for sneaking a lump of coal into Parliament – refused to meet with them.

According to him, Australia could increase its greenhouse gas emissions without making the fires worse.

“The suggestion that any way shape or form that Australia, accountable for 1.3% of the world’s emissions, that the individual actions of Australia are impacting directly on specific fire events, whether it’s here or anywhere else in the world, that doesn’t bear up to credible scientific evidence”.

According to journalist Peter Hartcher, the Prime Minister is in “frozen immobility on this because he does not want to upset the internal Coalition truce on climate and coal”.

Greg Mullins, former Commissioner of Fire and Rescue NSW, climate counsellor, says:

“[C]ommunities are increasingly under threat from extreme weather-driven events caused by climate change.  If it’s not time now to speak about climate change and what’s driving these events – when?  This fire season is going to go for months, so do we just simply get gagged?  Because I think that’s what happening; some people want the debate gagged because they don’t have any answers”.

“The Grenfell fire in London? People talked about the cause from day one.  Train crashes?  They talk from day one.  And it’s OK to say it’s arsonists’ fault, or pretend that greenies are stopping hazard-reduction burning – which simply isn’t true – but you’re not allowed to talk about climate change.  Well we are, because we know what’s happening.”

 

Raving inner-city lunatics

Back in November, Nationals leader Michael McCormack also took offence – in grand style – at those who draw a link between Australia’s bushfire crisis, and climate change.

We’ve had fires in Australia since time began, and what people need now is a little bit of sympathy, understanding and real assistance – they need help, they need shelter”

“But why is it wrong to ask those questions?”

“Well they don’t need the ravings of some pure, enlightened and woke capital city greenies at this time when they’re trying to save their homes and when they’re going out in many cases and saving other people’s homes and leaving their own homes at risk; what they don’t need is Adam Brandt and Richard Di Natale [Australian Greens’ politicians] trying to get a political point score on this, and it is disgraceful, it is disgusting, and I’ll call it out every time.”

It’s an interesting political position for the Nationals to take.  It’s not woke, inner city, latte-sippers who stand to lose their homes to fire.

It’s homeowners on the edges of cities, rural and regional Australians, including those living on the land – in the grip of a drought that grinds on and on.

Climate change has risen rapidly to become one of the most important – perhaps the pre-eminent – public health challenge.

The difficulty with climate mitigation strategy, shared by non-communicable diseases – is the need for governments to do lots of things across many portfolios (see here for the WHO’s Global strategy on health the environment, and climate change).  There is no silver bullet.

On the other hand, there are powerful economic interests that benefit from inaction.  And tragically, the issue has become politicised.

The political struggle begins at the level of language: there’s a contest about framing, about whose version of reality gains ascendency.

 

Australia and the language of fire

What can we learn from the language of fire in Australia?

On the planet Mars, two Martians, Mick and Scotty are discussing politics on earth, quietly pleased with the progress of earth towards a dry and barren planet more to their own liking.

“I think I get it”, says Scotty.  “High temperatures and strong winds cause bushfires, not climate change.”

“And don’t forget”, says Mick.  “Guns don’t kill people, people kill people”.

“You got it Mick!  And if you point to the lack of action on root causes you’ll be “called out” for “exploiting personal tragedy for political gain”.  But don’t worry, it’s OK to discuss the proximate causes and to show sympathy and solidarity with those who are suffering”.

“But if they cannot examine root causes, then how will they strengthen their defences against these terrible events?”

“They won’t”, says Scotty.  “That’s the point.  Ultimately these guys have ideological objections to being part of the solution”.

“Reminds me of an old saying”, says Mick.  “Nero fiddled while Rome burned”.

“It’s like I’ve always said”, said Scotty.  “No need to invade.  Just sit back.  They’re terra-forming the planet and getting it ready for us, without even being asked”.

On Friday 6 December 2019, the Board of the University of Sydney Law School voted unanimously in favour of a resolution declaring a climate change emergency.

You can read the declaration here.

Are you interested in studying health and medical law?  Click here, or here, for more information.

International Guidelines on Human Rights, Healthy Diets and Sustainable Food Systems: could they make a difference?

The BMJ has published an Opinion calling on the Director-General of the World Health Organisation, Dr Tedros Adhanom Ghebreyesus, and the United Nations High Commissioner for Human Rights, Dr Michelle Bachelet, to jointly initiate a process to develop International Guidelines on Human Rights, Healthy Diets, and Sustainable Food Systems.

180 signatories from 38 countries have supported this Open Call – experts in global health and development, human rights, food systems, and HIV.

You can join the Call and add your name in support here, at the Healthy Societies 2030 website.

Healthy Societies is also hosting supporting documents, including a suggested process for strengthening links between human rights and healthy diets at the global level, and moving towards international guidelines.  (You can contribute to the discussion form, follow on twitter, and join the mailing list).

But pausing for a moment.

How would International Guidelines on human rights and healthy diets make a difference?

The Open Call published in BMJ draws on the example of the International Guidelines on HIV/AIDS and Human Rights (1998), which clarified the legal obligation of States, under international law, to respect, protect and fulfill human rights in the context of HIV.

These Guidelines helped to consolidate the framing of global strategy for HIV prevention and treatment in terms of the human rights of those affected by HIV.

And they provided language and conceptual tools for civil society organisations to hold governments to account.

In the BMJ Opinion, we argue that joint WHO/OHCHR guidelines could have a similar effect, by putting people at the centre of food systems, and strengthening the protection of health in global and national policies.

 

Framing global strategy effectively: the example of HIV

Getting global strategies right matters because they affect national strategies, actions and budgets.

These days, human rights are at the centre of the global response to HIV.

A focus on human dignity, preventing discrimination, empowering those with, or at risk of HIV, and ensuring that no one is left behind – these human rights values lie at the core of global strategies to prevent transmission and treat infection.

It wasn’t always that way.

In Australia, in the 1980s and early 1990s, public debate about rising rates of HIV infection was often framed by prejudice and fear.

HIV was the “gay plague”.  As a PhD student, I remember seeing a call by the Queensland Association of Catholic Parents to brand homosexuals in order to “stop AIDS”.

In Australia at that time, otherwise sane people were arguing that everyone in the country should be tested for HIV, and those with HIV should be removed from society or quarantined in the desert somewhere.

Fortunately, a kinder, more rational and humane approach – a human rights approach – prevailed.

By working with and through those affected by HIV – rather than against them – HIV rates have remained low in Australia.

It didn’t happen by accident.  It took a great deal of effort to ensure that national strategy was framed in such a way as to make it effective.

(The Honourable Michael Kirby, a former Justice of the High Court, and tireless advocate for a human rights approach to HIV – especially during the critical decades of the 1980s and 1990s – is one of the signatories to this Open Call).

 

Why a human rights frame for healthy diets and sustainable food systems?

So human rights have played an honourable role in the global response to HIV.

But how could they have a similar positive impact on nutrition, diet, and health around the world?

Some of the most urgent public health problems today revolve around the interlinked crises of obesity, poor nutrition, hunger, and climate change.

The starting point is that in many countries, market forces are failing to deliver healthy diets, adequate nutrition and sustainable food systems.

If framing food purely as a commodity, and if framing food systems purely as business networks supplying commodities in response to market demand – was effective, then countries wouldn’t be buckling under the strain of a massive, preventable burden of diabetes, obesity and chronic, diet-related diseases.

The Lancet Commission on Obesity called for “a radical rethink of business models, food systems, civil society involvement, and national and international governance” to address these problems.

While many actions will need to be taken, the BMJ Opinion argues that human rights concepts and language are powerful, under-used tools.

Interested in supporting breast-feeding, and preventing the predatory corporate practices that undermine it?  Try doing that without the moral support of human rights concepts.

Interested in the quality of food and drinks served in schools?  Or the stealth marketing of unhealthy foods and drinks to children using online platforms?  You could, of course, revert to the well-worn concepts of parental responsibility and consumer choice.  How’s that working out?

International human rights law provides a powerful way to frame these, and other challenges.

States owe an obligation to respect, protect and fulfil the right to health, as recognised in Article 12 of the International Covenant on Economic, Social and Cultural Rights.

Amongst other things, this requires States to protect the right to health from interference by others, including corporations pursuing economic interests without reference to the impact on health or the environment.

Joint WHO/OHCHR guidelines could help to push human rights concepts and language beyond the “UN human rights silo”.

The subtle form of forum sharing and coalition building that we advocate, through joint WHO/OHCHR guidelines, is increasingly recognised in other areas of the global health response, such as the Global Strategy to Accelerate Tobacco Control (2019), adopted by the Conference of the Parties to the WHO Framework Convention on Tobacco Control.

Many new ideas appear surprising at first glance.  And action at the global level may appear indirect, and abstracted from reality.

However, International Guidelines on human rights and healthy diets could help to mobilize multisectoral action, strengthen the accountability of States and the private sector, and deepen community engagement in the urgent task of developing healthier, fairer and sustainable food systems.

Let’s leave no one behind.

You can join the Open Call on Dr Tedros and Dr Bachelet here.

 

 

Smoke-free streets and lanes: a growing headache for big tobacco?

Smoke-free Melbourne?

One of Melbourne’s quintessential experiences is to stroll its laneways, many lined with restaurants.  Smoking here would spoil things for everyone.

In 2014, Causeway Lane, a small restaurant strip running between Bourke Street Mall and Little Collins Street, went smokefree.

You can read reactions to this smoke-free pilot here.

Three more laneways were added in 2015.

Victoria’s Local Government Act 1989 permits local governments, including the City of Melbourne, to make and enforce “local laws” (see ss 3E, 111) that relate to its functions or powers, provided they are not inconsistent with Victorian Acts or regulations.

The City of Melbourne’s Activities Local Law 2019, one of three local City laws, empowers Council to prescribe smoke-free (local) areas (see Part 3A). Click here for more information on City of Melbourne smoke-free places, and click here for a map of these places.

The City of Melbourne is currently reviewing community feedback about a proposal to make Bourke Street mall smoke-free.  See here, and here.

 

Smoke-free North Sydney

North Sydney Council has gone even further, voting in July 2019 to completely ban smoking in its CBD.

Community consultation showed 80% support in favour of the ban.

The traditional justification for second-hand smoke laws – in bars and restaurants, offices, trains and airplanes, is that smokers should not be permitted to harm the health of non-smokers.

With growing demand for fresh air, however, these laws have taken on a life of their own.

Area-wide smoking bans in public places are a logical follow-on from the decade-old smoking bans on Sydney beaches.

Manly beach went smoke-free in 2004, and all harbour and ocean beaches in Sydney’s northern beaches area are now smoke-free.

Bondi Beach also went smoke-free in 2004, and Waverley Council has since extended smoking bans to the Oxford Street Mall.

 

Conceptualising innovations in tobacco control

Second hand smoke controls reduce butt litter and harm to non-smokers, including asthmatics and others with lung and heart conditions.

It seems clear, however, that bans are expanding into areas where the risk of harm to non-smokers is substantially reduced.

It’s a process I call transformation: when the justification for existing legal controls changes over time as a result of norm change, facilitating further expansion.

These days, what functions do smoking bans serve?  Beyond causing harm to non-smokers, are they laws that relate to amenity – the desire of the majority not to have their enjoyment of public places spoiled by even transitory encounters with nasty tobacco smoke?

Or are they about reducing the potential for smoking to function as a socially communicable disease by reducing the visibility of nicotine-seeking behaviour?

Or are they about litter and protection of our waterways?  (I once saw a smoker put their butt in the bin.  Honest, cross my heart).

Or are they simply an exercise in “making tobacco use difficult” (to use Brawley’s term)?

Whatever the reasons, the nanny state theorists aren’t having a bar of it.

Residents’ demand for fresh air, and smokers’ recalcitrance on butt litter went down like “sick in a cup” with radio man Steve Price, who has blasted the ban as a “nanny state solution”.

Other ways in which tobacco controls can expand include through extension (where the purpose of the law remains the same, but the reach or intensity of legal controls becomes more extensive over time (as with prohibitions on tobacco advertising), and through creation (where law imposes distinctively new kinds of controls to help reduce initiation, encourage quitting, discourage relapse, and reduce exposure to second-hand smoke).

[a designated smoking area on Orchard Road, Singapore]

 

Smoke-free districts in asia

A similar trend towards smoke-free streets and precincts looks to be under way in parts of asia.

From 1 January 2019, the Orchard Road precinct in Singapore became a smoke-free zone.

Smoking has not been eliminated entirely along Singapore’s famous shopping strip.  But smokers are required to smoke in designated places, reducing litter, and further reducing non-smokers’ exposure to tobacco smoke in outdoor areas.

It’s a similar picture in Penang, Malaysia.  This wonderful world heritage city has gone smoke-free.

In the United States, Disney World and Disneyland are going smoke-free, and there are no designated smoking areas within these parks.

Not all tobacco control advocates are comfortable with the trend towards smoke-free public spaces.

Simon Chapman has argued that “banning smoking in wide-open public spaces goes beyond the evidence and is unethical”.

One interesting possibility is whether the failure to accommodate smokers’ nicotine addiction constitutes discrimination on the grounds of “disability” or “impairment” under NSW, Victorian and other anti-discrimination or equal opportunity statutes.

While opioid addiction has been considered a disability under the Disability Discrimination Act 1992 (Cth) [see commentary here], nicotine dependence has not yet been regarded as a “disability” or an “impairment” for the purposes of State anti-discrimination laws (see here, and here).

I’m not sure tobacco companies want all their addicted customers categorised as disabled, but you never know.

In the meantime, enjoy the fresh air!

[No smoking in George Town, Penang’s World Heritage site]

Interested in studying health law?  Click here and here for more information.

Breastfeeding rooms in US federal buildings: who would have thought?!

Last year the US watered down a resolution of the World Health Assembly that would have called on States to “protect, promote and support breast-feeding”, and to provide technical support to “halt inappropriate promotion of foods for infants and young children”.

A step too far, apparently, given the economic interests of US-domiciled formula companies.

See here for a previous post.

In June 2019, however, Congress passed a Bill requiring federal agencies to provide lactation rooms for lactating women in buildings that are open to the public.  Think federal courts, US Social Security Administration buildings, and indeed, within the US Capitol building itself.

The Bill requires the agency to provide a lactation room that is “shielded from view”, “free from intrusion”, and contains a chair, a working surface and electrical outlet.

This ensures a place for women both to breast-feed, and/or to express breast milk.  Importantly, it encourages breast-feeding, and expressing breast milk as a new normal for women with infants who are interacting or indeed working for the federal government.

The bill provides for exceptions: where it is impossible at reasonable cost to re-purpose a space as a lactation room using portable materials, or where new construction would be required to create a lactation room at a cost that is unfeasible.

The Bill is a nice example of a public health intervention that changes the environment to support a behaviour that benefits the health of both the infant, and the nursing mother.  President Trump signed it.  Who would have guessed?

And now for the hard question: Can you imagine anything similar happening in Australia, the clever country?

Click here for a quick summary of the benefits of breastfeeding: you might be surprised how significant and extensive they are.

It’s the kind of stuff the manufacturers of “toddler milk” (Nestle and all the rest) tend not to emphasise.

(By the way, for those interested in tracking US Congressional legislation that impacts global health, click here).

 

Abortion law reform and conscientious objectors in NSW

New South Wales is on the cusp of reforming its decades-old abortion laws.

Reproductive Health Care Reform Bill 2019 which passed the State’s Legislative Assembly last week abolishes the triumvirate of criminal offences for abortion in the Crimes Act 1900 (ss 82-84), together with any residual common law liability for performing an abortion.

It creates a new offence for an unqualified person to perform or assist in the performance of an abortion.

New requirements for lawful abortion

The version of the Bill passed by the Legislative Assembly includes a number of requirements that were absent from the Bill as originally introduced by Independent MP Alex Greenwich.

The Bill follows Queensland legislation in authorising a medical practitioner to perform an abortion on a consenting woman who is not more than 22 weeks pregnant.

Before doing so, the doctor must consider whether the pregnant woman would benefit from counselling about the proposed abortion, and if so, must provide her with information about how to access such counselling, including publicly-funded counselling (s 7).

Beyond 22 weeks, an abortion may only be performed in a hospital or other approved facility (ss 6(1)(d), 12).

A woman seeking an abortion beyond 22 weeks must first consult a “specialist medical practitioner”, defined to mean a specialist registered in obstetrics and gynaecology, or alternatively – and rather vaguely – “a medical practitioner who has other expertise that is relevant to the performance of the termination, including, for example, a general practitioner who has additional experience or qualifications in obstetrics.”

The first specialist medical practitioner must consult with a second specialist medical practitioner and both must conclude that “in all the circumstances, the abortion should be performed”, having considered the pregnant woman’s medical circumstances, her current and future physical, psychological and social circumstances, and professional standards (s 6).

However, these requirements (including the requirement for the doctor to be a specialist) do not apply if the doctor believes that the abortion is necessary to save the woman’s life or save another foetus (s 6(4)).

The Bill authorises medical practitioners, nurses, midwives, pharmacists or Aboriginal and Torres Strait Islander health practitioners to assist in abortions in the practice of their health profession, provided they comply with the requirements summarised above (s 8).

Conscientious objectors

Then comes the bit about conscientious objectors.

The NSW Bill follows abortion liberalisation laws in other States, including Queensland, Victoria, and Tasmania, in recognising a medical practitioner’s conscientious objection to advising about, assisting or performing an abortion.

However, the Bill requires conscientious objectors who have been asked to perform or advise about an abortion to refer the woman to another medical practitioner (or health service) whom they believe “can provide the requested service and does not have a conscientious objection to the performance of the termination” (s 8).

To me, that looks a lot like compelling a doctor to participate in facilitating an abortion, irrespective of their moral beliefs.

The Bill is oddly worded, but s 10 appears to indicate that failure to perform one’s statutory duty and to refer a woman seeking an abortion to a medical practitioner who is happy to provide one, is something that can be taken into account in considering complaints made against that doctor to the Medical Council of NSW, or complaints to the Health Care Complaints Commission.

So why privilege the conscience of doctors when it comes to abortion, as distinct from treating abortion like any other medical service?

Stop and think about it.

Because abortion is only one of the most long-standing and bitterly contested medical ethics issues of all time, and medical practitioners who sincerely believe that abortion is morally wrong all or most of the time are hardly newcomers to the health system.

Because the foetus is not nothing – just ask the thousands of women out there who would do anything to fall pregnant, or stay pregnant – and if the foetus is not nothing then a medical practitioner ought to be given the moral space to decide whether and under what circumstances they will participate in the process that leads to killing it.  As courts have said in other contexts, a foetus is not just tissue of the woman in the same way as, say, a diseased appendix or diabetic limb.

Rather than recognising that we live in a pluralistic society where fundamental disagreement persists around issues like abortion and assisted dying, the Bill adopts a triumphalist, winner-takes-all approach, presumably in order to eliminate obstacles to access.

It is hardly surprising that in Victoria, where a similar law was introduced in 2008, some conscientious objectors have not complied with their legal obligations.

Triumphalist legislation

The willingness of Australian Parliaments to liberalise abortion laws reflects the gradual strengthening of personal autonomy and individualism as dominant values in Australian life.

(Moral conservatives in the neoliberal camp, with their Thatcherite view of the world, their easy slogans like “personal responsibility” and “nanny state” have, ironically, helped to create the conditions where progressive abortion laws can now be passed).

But the point is that doctors have personal autonomy too.  As professionals – meaning highly skilled and ethically reflective people with a commitment to the ideals of their profession – doctors have never been mere servants to the designs of their patients.

By all means over-ride a doctor’s conscience if an abortion is necessary to save the pregnant woman’s life.  But otherwise, why threaten the right to practice of a doctor who, for deeply felt moral reasons, cannot participate in a referral system for killing unborn babies?

As I read the legislation, the Bill creates an offence for failing to refer a woman to another doctor who “does not have a conscientious objection to the performance of the termination” that has been requested in the circumstances.

It co-opts not only “right-to-lifers”, but others who believe that the moral status of an abortion depends on the circumstances.

A doctor might believe, for example, that terminating a foetus because it is a girl rather than a boy, is wrong.

In response to concerns about sex selection abortion, the Bill requires the Minister to conduct an inquiry on this issue within 12 months.  However, it doesn’t exempt a doctor who might refuse to refer a couple who want to terminate their foetus because it is the wrong sex.

As it stands, most of the reforms in the Reproductive Health Care Reform Bill 2019 are welcome.  But where is the public interest in requiring conscientious objectors to cross moral boundaries?

Some will feel that it ushers in religious discrimination.

And they won’t comply.  They might well say: since when did the State have the authority to require me to be part of a referral system for killing the unborn?