When history won’t go away: abortion decriminalisation, residual criminalisation and continued exceptionalism

Between 2002 and 2023 all Australian jurisdictions decriminalised abortion. This involved removing the regulation of abortion from criminal law and replacing it with standalone Acts or sections situated within health law. New health law regulations range from minimal in the ACT, the first to decriminalise, to complex, especially in NSW and SA where anti-abortion amendments delivered requirements such as counselling and prohibitions on sex-selective abortion. In all jurisdictions, the removal of abortion from criminal law was incomplete as new offences were introduced to penalise ‘unqualified’ people who perform or assist in the performance of an abortion. The South Australian Law Reform Institute referred to this new criminal law as a ‘residual offence’. The residual offence exemplifies how decriminalising Acts continue to exceptionalise abortion.