In their response, The role of the church in developing the law: response to commentators, Professors Skene and Parker make a number of criticisms of my commentary, some contestable, some plainly mistaken.¹

Their first criticism is that I am “incorrect” and “misleading” in describing the New South Wales Crimes Act as “[a] statute which provided that abortion was a criminal offence”. They give as their reason that: “The criminal offence created by section 83 of the Crimes Act 1900 (NSW) is not abortion. It is unlawful abortion. Because the word ‘unlawfully’ appears in the act, it is clear that the law states that it is sometime lawful to undertake an abortion.” They then explain the interpretation of the cognate provision in the Victorian legislation provided by Justice Menhennit in R v Davidson [1969] VR 667.

The reason they offer for their criticism fairly summarises the moves made by Macnaghten J in his direction in R v Bourne (1938) and by Menhennit J in R v Davidson. But it is far from “clear” (as Professor Skene must surely know) that the use of the word “unlawfully” supports those moves. It was and remains a matter of real controversy whether the use of the expression “unlawfully” has the meaning which Menhennit J attached to it.

Section 83 of the Crimes Act (based on s 59 of the Offences Against the Person Act 1861) provided:

Whosoever—unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing; or unlawfully uses any instrument or other means, with intent in any such case to procure a miscarriage, shall be liable to penal servitude for ten years.

Consider that provision alongside other provisions in the Crimes Act 1900 which also make use of the term …