Gary Humphries (ACT, Liberal Party) Share this | Link to this | Hansard source

I present the report of the committee on the provisions of the Transparent Advertising and Notification of Pregnancy Counselling Services Bill 2005, together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

I move:

That the Senate take note of the report.

This inquiry has been one of a series of difficult inquiries conducted by the Community Affairs Legislation Committee in recent years. It was difficult because it blended the apparently straightforward issue of transparent advertising with the morally fraught issue of abortion. The committee attracted significant interest from the community. There were more than 6,000 contributions; most of them were in the form of email contributions, but there were many submissions as well. The committee travelled to Melbourne, Sydney and Adelaide to take evidence and also held a public hearing in Canberra.

The report which I have just presented explores a variety of issues that were raised in the evidence that the committee received. As senators will see, the committee has divided on the issues presented in the report, in particular on whether the bill which is the subject of the report should be supported by the Senate. The majority position is that the bill should be rejected. There are a variety of reasons for coming to this view. Essentially, the majority of the committee viewed the bill as having a number of significant flaws. Those flaws may be discussed at greater length if and when this bill is brought on for debate, but I want to touch on a few of them now.

There was significant concern on the part of the committee majority about the constitutionality of the bill; that is, whether the parliament has the power to pass a bill which effects these changes to the law. I understand that Senator Barnett will speak at greater length on that issue.

The report highlights a series of problems with terminology used in the bill. For example, the term ‘referrals’ in clause 6 of the bill presented a particular problem. The bill requires that a pregnancy counselling service that does not provide so-called ‘referrals’ for termination of pregnancy must include in the advertising and notification material for that service a statement that it does not do so. It was pointed out to the committee that there is considerable difference in the way in which the term ‘referral’ is used here and the way it might be used with reference to the services provided by a doctor. The term ‘non-directive’ also gave witnesses some concern. The term is used widely in health and counselling services around the country, but it is used in a different sense in the bill, at least on the evidence of some witnesses, to that used in the sector.

The proponent of this bill claims that the bill imposes on the sector rules which apply in the course of trade and commerce; that is, things which apply in the general community are made to apply to this sector. But I think this approach is a troubling one when it applies to a sector which offers services based on the work of volunteers. There is an imposition of commercial requirements in this bill backed by massive fines imposed on organisations which are largely staffed and operated by volunteers.

The bill purports to offer a balanced approach, one which is even-handed. It says that the law applies to everybody, irrespective of their particular service in the community. As I heard the evidence in this inquiry, a famous phrase from Anatole France sprang to mind:

The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread.

This bill purports to be even-handed, but it dramatically affects one part of the pregnancy counselling services much more than others.

Where is the equivalent requirement for pregnancy counselling services with financial links to abortion clinics to declare that fact? Where is the requirement for such services to declare that they do not offer, for example, information about adoption? That is missing from this legislation. There is a provision in clause 7 of the legislation to ban a pregnancy counselling service which does not ‘refer for abortions’, using the language of the bill—even one which openly declares that fact, pursuant to the legislation—and prohibits that service from advertising its services in the 24-hour help section of the telephone directory. That is utterly outrageous. These services have a right to provide information to women. It is the impression of the majority of the committee that what this legislation does is to target services which do that without making referrals for abortion. In the interests of providing other senators with time to speak, I intend to close my remarks here.

Carol Brown (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on the minority report on the Transparent Advertising and Notification of Pregnancy Counselling Services Bill 2005, which recommends that the bill passes the Senate. The intent of the bill is clear. The bill is straightforward and balanced. The overriding purpose of the bill is to ‘prohibit misleading and deceptive advertising and notification of pregnancy counselling services’. The bill aims to ensure that all advertising is truthful. The legislation is not about the services that a pregnancy counselling service can or cannot provide. It does not force any counselling service to provide services over and above those they currently offer.

What it does is to say that all advertising of pregnancy counselling services must be truthful. It does not force, as was claimed by some organisations and individuals, a pregnancy counsellor to participate in an illegal act. It does not force pregnancy counselling services to provide referrals for abortion. It will not force pregnancy counselling services to close or restrict their business. What this legislation will do is to force all pregnancy counselling services to ensure that all advertising material is truthful. The bill is not trying to tell volunteers at pregnancy counselling services to change anything that they currently are doing.

The bill simply requires that any organisation that advertises itself as a pregnancy counselling service does so truthfully, and that is, after all, what this bill hinges upon: the issue of truthfulness. This is a bill that states that any pregnancy counselling service’s advertising be truthful as to the type of service it provides. This is a simple bill that says that you must be truthful. If your organisation does not want to provide counselling that includes advice about termination of pregnancy as an option, then so be it. However, the bill says that you must ensure that your advertising makes it transparently clear that you do not provide that service.

There seems to me to be a fundamental principle at the heart of this bill. If you wish to offer pregnancy counselling services and do not wish to provide information about one of the three options, then there is nothing in this bill that will force you do so. By the same token, if you do not wish to provide information about an option, then you surely must be prepared to let potential clients know that. I have no doubt that all the people working in the area of pregnancy counselling are people of conviction. Based on their own values and knowledge, they provide counselling services to other people in our community without being paid for it. If people of conviction can provide these services, then surely the organisations that they work for should be organisations of conviction and ensure that all advertising of the services that they offer is truthful—nothing more, nothing less.

Judith Adams (WA, Liberal Party) Share this | Link to this | Hansard source

I rise today to support the Transparent Advertising and Notification of Pregnancy Counselling Services Bill 2005. The major objectives of this bill are to prohibit misleading and deceptive notification and advertising of pregnancy counselling services and to promote transparency in any advertising material. Pregnancy counselling services provide information and advice to women, especially when faced with an unplanned pregnancy, on the options available to them, generally considered to be parenting, adoption or termination. I agree with the principles underpinning this bill and the necessity for pregnancy counselling services to be open and transparent about the extent of all-options counselling that they provide.

My agreement with these principles forms the basis of my strong support for the government’s intentions in relation to the introduction of the national pregnancy services telephone hotline, which will provide professional, non-directive advice. It will be a requirement for the helpline operator to provide a non-directive counselling service to assist a person to make a decision. The advice provided by the helpline will cover the full range of options available: raising a child, adoption and termination.

Throughout the inquiry, the committee was overwhelmed by the evidence presented to it either supporting or refuting a link between pregnancy termination and some alleged health risks. I was particularly concerned by some of the inaccurate and wildly exaggerated claims presented to the committee, such as that termination leads to an increased risk of breast cancer and the development of mental health problems or infertility. There is no credible scientific evidence to support these claims.

I understand that the National Breast Cancer Centre will be publishing a report refuting claims of a link between pregnancy termination and an increased risk of breast cancer. I commend this work and that of other distinguished research bodies which are working to further our knowledge and understanding of such health care matters, both domestically and internationally.

Australian women have a right to be provided with accurate, complete and scientifically proven information, regardless of whether the pregnancy counselling service they approach for assistance does or does not provide information on accessing termination services. Only information that is substantiated by credible scientific studies and reported by reputable health care organisations should be used by pregnancy counselling services when discussing the options for dealing with an unplanned pregnancy. Each option, whether it be continuing with the pregnancy and choosing to either parent or adopt out or choosing to terminate the pregnancy, brings with it associated medical risks to the woman, depending upon her particular situation. Only by providing the woman with a thorough understanding of the issues related to each option can she feel empowered to make an autonomous and informed decision about her pregnancy.

The committee heard evidence on the additional challenges faced by women living in rural, regional and remote communities who experience an unplanned pregnancy. These women are not afforded the same luxury as are their counterparts in city centres in being able to shop around for advice and support from a range of service providers. For women living in small outback communities, if their local doctor is opposed to pregnancy termination and will not provide information about accessing a termination or other family planning advice, there are often very limited opportunities for accessing alternative advice. The situation is further complicated because it can be particularly difficult to obtain confidentiality in small towns. This is why unbiased, non-directed and independent pregnancy counselling and support available through telephone help lines is so important to these women. (Time expired)

Helen Polley (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on the report of the Senate Community Affairs Legislation Committee’s inquiry into the Transparent Advertising and Notification of Pregnancy Counselling Services Bill 2005. Pregnancy counselling services are just that: they provide counselling relating to pregnancy. This bill is about advertising and whether these service providers should be required to advertise whether they are pro-life or pro-choice. Mrs Pat Gartlan from my home state of Tasmania made the following observations in her submission to the committee:

It is a fact that everyone is biased about all manner of topics in the sense of holding a particular view. There is no such thing as an unbiased person. However, a counsellor is trained to recognise their own attitudes and to leave them outside the counselling situation.

A marriage guidance counsellor may be biased against divorce as a solution, but abide faithfully by the rules of counselling set out by the organisation.

It is a matter of interest that marriage guidance counsellors are not required to state in any advertising, whether or not they are inclined to favour divorce as a solution to marital disharmony.

In another submission to the committee, Dr David van Gend said that it is inappropriate and unnecessary to force pregnancy counselling organisations to state their stance on abortion in advertising material. Logic would surely prevail in that women who are seriously set on abortion as the only course available to them would not necessarily contact a pregnancy counselling provider if alongside such a provider in the phone directory they were to find pregnancy termination services. We must remember that this issue is separate to that of abortion, but the sad fact is that many women who find themselves pregnant and thinking about abortion would not contemplate approaching a pregnancy counsellor as they may not even consider themselves to be pregnant.

Instead of focusing on the issue of whether or not a counselling service should advertise its pro-life or pro-choice persuasion, our focus would better serve Australian women if we ensured that women who do seek abortions by contacting a termination provider receive adequate counselling before and after the procedure. Pregnancy Counselling Australia commented during the hearings that the wide range of pregnancy counselling services available throughout Australia cater to the differing needs of women dealing with unplanned pregnancies. This would suggest that women who have been able to find a number for a counselling service would readily be able to find a number for a termination service if that were their wish.

Among the conclusions of the committee is the point that I believe is the real issue concerning unplanned pregnancies in Australia. There should be a comprehensive approach to sex education in this country. Our aim as legislators should be to ensure that more is done to reduce the overall number of unplanned and unwanted pregnancies so that the demand for pregnancy counselling services is decreased and thus the number of abortions is drastically cut. That would be the best possible outcome for everyone. But instead we have this misguided idea that, because some counselling services are not advocating or endorsing abortion as a readily available option, they are breaking women’s trust and that there needs to be legislation in place to ensure that they raise the topic of abortion.

Abortion, for all women, should be an absolute last resort. I am concerned, as I know some of my colleagues in this place are, that all too often in today’s world women see abortion as a secondary form of contraceptive. This should not be the case. Abortion is not a preventative measure. Whichever way you prefer to look at it, abortion ends the life of what would otherwise have become a baby—a human life in its own right.

People have been quick to point out that this bill is not about abortion, and that is correct. However, we have not seen nearly as much focus on counselling services which do offer a multitude of advice on abortion, while failing to point out the assistance that may be available to mothers if they continue with a pregnancy, for example, or other options such as adoption. I seek leave to incorporate the rest of my speech in Hansard.

Leave granted.

The incorporated speech read as follows—

Coming back to my point about education and prevention, a recent study in Europe found that children who discussed sex at an early age with their parents held off having sex longer than those who did not talk about the subject when they were young.

The study also found that those who learned about the birds and the bees from a young age had less sexual encounters that involved alcohol or drugs then those who had not.

While education will not prevent all unplanned pregnancies in Australia, with close to 100,000 abortions currently performed each year, it is most definitely worth looking at greater education as a solution.

The committee in its conclusions found that the community is widely in favour of transparency in advertising, but whether this extended to forcing organisations that are primarily made up of volunteers who give their own time for the betterment of women in need, I am highly doubtful.

The majority position of the committee, shared by myself, Senator Humphries and Senator Barnett, found that the evidence presented to the committee during the course of the inquiry cast doubt over the efficacy and effect of the Transparent Advertising and Notification of Pregnancy Counselling Services Bill 2005.

It is my belief, and the belief of other majority Senators, that it would be irresponsible to recommend that the Senate look to pass this bill into law which could fail to apply to applicable situations.

Overall it is considered that the bill seeks to hamper efforts of those pregnancy counselling services who are offering services which offer women free and sound advice in the midst of what can be a very confusing and traumatic time. The intention of the bill to intimidate and pressure services to refer for abortion or impose specific requirements for transparency without imposing equivalent provisions on other services, such as those linked to abortion providers, is biased in the very least.

The majority Senators are in agreement that the apparent effect of this bill would be to increase the likelihood of ready referral for abortion, and with the abortion rate in this country already at obscene levels, this is certainly something we must strive to prevent.

The fact that it was not presented throughout the committee’s inquiry that there are women who want abortions but are unable to gain access also suggests that the need for this bill is unfounded.

It also reflects on the widespread community consensus, as was evident at the time the RU486 legislation was considered, that there are too many abortions in Australia.

The majority Senators believe that, rather than obstructing the work of pregnancy counselling services that seek to assist women dealing with unplanned pregnancy, by offering genuine alternatives to abortion, that the public and the Parliament should be thankful for these services which are largely carried out by a dedicated and caring bunch of volunteers.

I thank all those that provided evidence and submissions.

The committee majority therefore recommends that the Transparent Advertising and Notification of Pregnancy Counselling Services Bill 2005 not be supported.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I stand to strongly oppose the Transparent Advertising and Notification of Pregnancy Counselling Services Bill 2005. Firstly, I wish to thank the secretariat for the work that they did under difficult and challenging circumstances. I also wish to thank many of the witnesses who appeared before our committee—particularly the pregnancy counselling services which at times felt targeted and under attack. I believe those services felt at times that the services they provide to the Australian nation were in fact not valued or appreciated. I want to stand here and say that I do support them and thank them for the services that they do provide.

The net effect of the bill would be to increase the likelihood of ready referral for abortion. The bill does have a narrow focus and, in my view, it is irresponsible. Rather than the parliament obstructing the work of pregnancy counselling services, which offer an invaluable service to the community—and specifically to women in the community dealing with an unplanned pregnancy—it should be grateful for the community service performed by those organisations. As has been noted by the chairman, Senator Humphries and Senator Polley, it is my view as well that the abortion rate in this country is already at an unsatisfactorily high level of close to 100,000 abortions each year. That is unacceptable. It is certainly something that we all, in this parliament and across the community, must strive to prevent.

In my view, the legislation is also significantly and potentially constitutionally flawed. As I indicated, it unfairly targets a particular pregnancy counselling group while leaving out those linked to abortion clinics. The Commonwealth should look at ways of fostering and enhancing the work of these groups and do all it can to prevent the number of abortions in Australia rising. In terms of the majority report, a great deal of evidence was received regarding the terminology of the bill, especially the terms ‘non-directive’ and ‘referral’. The proponent of the bill has accepted that there are, and were, serious objections to those terms and has intimated that amendments may be proposed to address these concerns.

Finally, I want to address the constitutional issues raised by the bill. It is my view that significant parts of the bill itself raise serious questions about its validity, especially in its attempt to regulate non-broadcast advertising by noncorporations which are not engaged in interstate trade or commerce. I refer specifically to placitum (i) of section 51 of the Constitution regarding trade and commerce, and placitum (xx) of section 51 on the corporations power.

I note that the minority report even refers to advice from Mr Charles Francis, who argued in his submission:

It ... seems to me that the requirements of the Bill in so far as it seeks to deal with those who provide counselling services free is probably beyond the constitutional powers of the Commonwealth and is a matter for the States only.

That is in the minority report. Their report then concludes:

Mr Francis’ view that this is a matter for the States is one that is definitely worth pursuing.

Maybe that is a matter for the proponent to pursue. I will leave it there and thank the Senate.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

Women in Australia who are pregnant, especially those who have an unplanned pregnancy, have the right to access a counselling service that will give them all-options, genuine pregnancy counselling information about all of the three options and paths that they can pursue. That is not the case currently in Australia because women do not know which services will provide them with that genuine care. The Transparent Advertising and Notification of Pregnancy Counselling Services Bill 2005 seeks to address that issue by ensuring that organisations which advertise are clear and transparent about what the services are that they will provide women with. Will they provide genuine, all-options pregnancy counselling?

The Greens support this bill because we want to ensure that women who are pregnant, particularly those with an unplanned pregnancy, are able to access a service that meets their needs and is going to provide them with evidence based, medically proven information about public health issues; that is going to listen to their view; and that is going to advise them and assist them in coming to their decision. It is extraordinary that such a service does not exist in Australia. The Greens have concerns about the number of organisations that do not provide that genuine, all-options counselling.

We also have concerns about the amount of government funding that is provided to many of those organisations that are not transparent in their advertising and that do not provide women with all-options counselling. Young women at universities have asked me, ‘How do I know which services are genuine?’ In response, I have produced a guide which outlines which pregnancy counselling services offer genuine pregnancy counselling and which ones do not. I seek leave to table that guide here today.

Leave granted.

It is extraordinarily important that women are able to access this information so that they can know that the services that they are calling up for advice, at a time when they really need that advice, will give them genuine counselling and will help them to decide what is a very difficult decision. (Time expired)

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

I begin by thanking the members of the secretariat for their hard work, Ms Hodgkinson and Mr Humphery in particular, and thanking all my colleagues for their participation in an interesting, at times complex and often emotive inquiry, and that includes thanking the chair for his work. I introduced the Transparent Advertising and Notification of Pregnancy Counselling Services Bill 2005 to regulate pregnancy counselling services insofar as they would be prevented from misleading or deceptive advertising in relation to their notification of pregnancy counselling services. The bill is designed to ensure that those particular organisations which do not refer for terminations declare that fact so that women seeking advice on whether to continue a pregnancy know exactly what kind of organisation they are contacting.

The urgency of this issue was highlighted only this year in March when the government announced that it would allocate $51 million over the next four years to establish a National Pregnancy Support Telephone Helpline and introduce a Medicare rebate for pregnancy counselling. Currently, in this country, there are no federal government funded, dedicated, pro-choice pregnancy counselling services, which means that no pro-choice service is able to provide a national, 24-hour pregnancy counselling helpline, and thus they are not eligible to advertise for listing in the 24-hour listings in the White Pages. The federal government must address this, at a minimum by allocating a similar, comparable amount or the same amount of money to funding a pro-choice dedicated pregnancy counselling service at least equivalent to that of the pro-life Australian Federation of Pregnancy Support Services.

Unlike organisations that charge for the services they provide and thus are subject to the Trade Practices Act, pregnancy counselling organisations are not prohibited from engaging in deceptive behaviour or misleading advertising, and this bill was designed to address that loophole. The committee heard a range of evidence, including from anti-choice pregnancy counselling services that did not support regulated, transparent advertising because they were concerned that fewer women would contact them if the women knew that they did not refer for terminations. Festival of Light, I acknowledge, reinforced this point, claiming that the bill would result in women ‘missing out on vital information that they needed about the risks of abortion’.

It is hard to imagine how anyone with women’s best interests at heart could believe seriously that receiving a high volume of phone calls is more important than women receiving up-front, unbiased, objective advice about their circumstances and about the options available to them so that they could make the best informed decision for themselves on the basis of that information. My definition of ‘non-directive’ may have been opposed by some, but I stand by the notion that ‘all options’ means all options, and there are only three options—adoption, keeping the baby or, indeed, having a termination, which is a legitimate and legal option in this nation.

Evidence presented to the committee reinforced the urgency of this issue and highlighted the misleading and deceptive information that women do receive. Dr Susie Allanson, a clinical psychologist from the Fertility Control Clinic in Melbourne, provided case studies to the committee. One woman in particular had received information that resulted in quite a traumatic experience. She reported:

My boyfriend and I went to a pregnancy counselling service ... They showed us a film that was really frightening showing the baby trying to get away from the instruments the doctor was using. Then they told us how bad it was to have an abortion and I would never be able to have any children. They said my boyfriend would leave me if I had an abortion. I said my parents would kill me and kick me out if they found out I was pregnant. They said they would give me baby clothes and somewhere to stay till I had the baby. I said I wanted to finish school and I had to get an abortion. I did not want to live with strangers or adopt the baby out. I was so furious and scared after seeing them.

Ms Brigid Coombe, from the Pregnancy Advisory Centre in Adelaide, also presented the committee with evidence of examples of deceptive counselling practices. There are case studies, there is anecdotal evidence and, although witnesses generally supported the principle of transparency in advertising, there was debate about the terminology used. I do not deny that. It was particularly about the definition of ‘non-directive’ and the words ‘to refer’. Indeed, there was strong support from the people who gave evidence in favour of the bill for the terminology that was used.

Anti-choice organisations and individuals argued, I claim incorrectly, that the bill ‘intends to put out of business any pregnancy counselling service which will not refer for abortion’. That is wrong. The bill is not designed to disadvantage anyone, to obstruct pregnancy counselling services or to ensure that people have a particular philosophical or ideological opinion. I defend the right of a diverse range of services to exist, but I insist, as would many other people, on seeing these services being up-front and honest about what they do and how they advertise.

I thank the cross-party support that I have had, particularly from women, including Senators Adams, Brown, Moore, Webber and Nettle, and my colleagues in the Democrats. I also acknowledge the work of everyone in this committee, regardless of perspectives. This has been another great example of people working together with women’s interests at heart in an attempt to ensure not only that women’s reproductive rights are protected but that counselling and pregnancy services are up-front. (Time expired)

Debate (on motion by Senate Moore) adjourned.