Questions about the Abortion Law Reform Amendment (Health Care Access) Bill 2025 (NSW)

The Bill and related extrinsic materials may be found here.

Under the Bill, could the NSW Health Minister direct Catholic and Christian hospitals to perform abortions, or does the Bill only provide the Minister with power over public hospitals?

The proposed s 4A(1) of the Bill creates a statutory duty that will apply to the New South Wales Minister of Health (‘Minister’). It requires the Minister to ensure that

(a) abortion services are provided throughout the State within a reasonable distance of residents’ homes, and

(b) information about access to abortion services is made publicly available.

To discharge this duty, the Minister is empowered by the Bill to give directions to the Secretary of the Ministry of Health (‘Secretary’) or a public health organisation (s 4A(2)). The nature or content that these directions might or must take, however, are not specified. Nevertheless, the Secretary or a public health organisation receiving those directions must comply with them (s 4A(3)).

For the purposes of the Bill, the words ‘public health organisation’ are defined in section 7 of the Health Services Act 1997 (NSW) (‘HS Act‘): see s 4A(4). Section 7 of the HS Act defines a public health organisation as a local health district, or a statutory health corporation, or an affiliated health organisation in respect of its recognised establishments and recognised services.

Affiliated health organisations are listed in schedule 3 column 1 of the HS Act. They include religious, non-profit, charitable or other non-government organisations and institutions. Examples of these organisation include St Vincent’s Hospital Sydney Limited, Mercy Hospitals NSW Ltd, and the Uniting Church. Recognised establishments and services of these organisations are listed in schedule 3 column 3 of the HS Act. These include the War Memorial Hospital (Waverley) (of the Uniting Church) and St Vincent’s Hospital, Darlinghurst (of St Vincent’s Hospital Sydney Limited).

Section 13(3) of the HS Act states that

The principal reason for recognising affiliated health organisations is to enable certain non-profit, religious, charitable or other non-government organisations and institutions to be treated as part of the public health system where they control hospitals, health institutions, health services or health support services that significantly contribute to the operation of that system.

Given the duty of the Minister described above, the proposed s 4A of the Bill could require the Minister to give directions either to the Secretary or to a Catholic or Christian hospital listed in schedule 3 column 3 of the HS Act to ‘ensure that abortion services are provided throughout the State within a reasonable distance of residents’ homes.’

However, the Bill does not specify the content or nature of the directions that would allow the Minister to discharge the statutory duty — nor what amounts to a ‘reasonable distance’ under s 4A. It is therefore unclear whether the Minister would ever actually be required to give a direction that a Catholic or Christian hospital must do something to ensure the provision of abortion services throughout NSW. However, it is perhaps possible a Minister could give such a direction in certain very limited circumstances. These circumstances might arise when the following contingencies occur:

1. A Christian or Catholic hospital listed in the HS Act sch 3 column 3 does not provide abortion services within a ‘reasonable distance’ of certain residents’ homes; and
2. No other public health organisation exists within a ‘reasonable distance’ of those residents’ home (ie, no other local health district, statutory health corporation, or other affiliated health organisation is within a reasonable distance of a residents’ home); and
3. The Minister decides in those circumstances to direct the Christian or Catholic hospital to provide abortion services within a reasonable distance of the residents’ home.

OR

1. A Christian or Catholic hospital listed in the HS Act sch 3 column 3 does not provide abortion services within a ‘reasonable distance’ of a residents’ home; and
2. A public health organisation exists within a ‘reasonable distance’ of the resident’s home but it also does not provide abortion services (ie, a local health district, statutory health corporation, or other affiliated health organisation exists but does not provide those services); and
3. The Minister decides not to direct the other public health organisations to provide abortion services; and
4. The Minister instead decides to direct the Christian or Catholic hospital listed in the HS Act sch 3 column 3 to provide abortion services within a reasonable distance of the residents’ home.

Of course, there may be other scenarios in which certain directions might be made.

It is very important to note, however, that there are very few Christian or Catholic hospitals listed in the HS Act sch 3 column 3. Indeed, it appears that only three Christian or Catholic hospitals would be considered part of the relevant or eligible public system in NSW. (I discuss this further below.) Moreover, because these Christian or Catholic hospitals appear to be in urban areas, where other public hospitals exist, the likelihood of the Minister issuing directions to those hospitals concerning the provision of abortion services appears to be remote.

How many public hospitals in NSW are Christian or Catholic?

The Bill uses the term ‘public health organisation.’ As noted above, public health organisations include affiliated health organisations listed in schedule 3 column 1 of the HS Act and their recognised establishments and services, which are listed in schedule 3 column 3 of the HS Act. Although it is unclear how many of these recognised establishments have a Christian or Catholic association, four appear to have an association with the Christian faith; and, given that one is a hospice, only three would appear to be relevant. These are:

1. St Vincent’s Hospital, Darlinghurst;
2. Sacred Heart Health Service (although this is a palliative care hospice attached to St Vincent’s Hospital, Darlinghurst, and so it is probably irrelevant);
3. Calvary Health Care Sydney (described on its website as a charitable Catholic not-for-profit organisation: see https://www.calvarycare.org.au/about) with a hospital, Calvary Health Care, in Kogarah; and
4. War Memorial Hospital (Waverley), which is run by the Uniting Church — a Christian church.

From what we can tell, St Vincent’s is the only Catholic public hospital. Noting the reference in the Bill to ‘a reasonable distance,’ would it impact St Vincent’s considering that other public hospitals are nearby, which could provide abortion services?

If the other public hospitals nearby provide abortion services, then my hypothesis would be no — the Bill would not impact St Vincent’s Hospital, Darlinghurst. This is because the Minister would not be required to direct St Vincent’s to do anything to ensure abortion services are provided within a reasonable distance of residents’ homes if abortion services were already provided by other public health organisations within a reasonable distance of those residents’ homes.

For instance, it appears that the Royal Hospital for Women in Randwick provides abortion services. St Vincent’s and the Royal Hospital for Women are only about 7.3 kilometres apart. Therefore, it would seem unlikely the Minister would consider this distance to be sufficiently long to mean that it would not be ‘within a reasonable distance’ of a residents’ home whose home might be within a reasonable distance from St Vincent’s.

Of course, the expression ‘reasonable distance’ is not defined in the Bill, and different Ministers may have different views of the meaning of that expression. In this regard, the Second Reading Speech for the Bill notes that

The wording of schedule 1 [1] and [2] are deliberately broad so as to take into account the diversity of the State and its health services. It would not be appropriate to legislate a particular size or type of hospital or distance to services because of that diversity. What is considered a reasonable distance in Albury may not be reasonable in Gunnedah, Wilcannia or Western Sydney. Many very small rural hospitals do not have the capability to provide surgical abortion and should not be mandated to.

This part of the second reading indicates that the meaning of the expression will likely depend on the geographical context in question and the extent to which services are already available within a reasonable distance. It appears that the intention of drafter/s of the Bill is that the expression ‘reasonable distance’ may involve longer distances in regional areas than it might in urban areas. For instance, 50 or more kilometres might be understood as a reasonable distance if a person lived in a remote or rural community where there were very few public health organisations.

Does this Bill, or any other existing legislation, allow the minister to issue directions to public Christian and Catholic hospitals to perform abortions?

The proposed Bill requires the Minister to ensure that abortion services are provided throughout the State within a reasonable distance of residents’ homes. This would be a statutory duty. The Bill also empowers the Minister to give directions to the Secretary of the Ministry of Health or a public health organisation to discharge that statutory duty. Therefore, under this proposed Bill, the Minister could give a direction under this Bill to one of the very few Christian-affiliated hospitals listed in the HS Act to ‘ensure that abortion services are provided throughout the State within a reasonable distance of residents’ homes.’

However, there may be several ways the Minister can ensure that abortion services are provided throughout the State within a reasonable distance of residents’ homes without issuing such a direction. And it appears that the relevant Christian hospitals are located in urban areas where such directions would be unnecessary.

The Minister has existing powers to give directions to determine the role, functions and activities of Christian-affiliated hospitals, including under s 65 of the HS Act. That section states as follows:

Minister may determine role, functions and activities of affiliated health organisations

(1) The Minister may, from time to time, determine the role, functions and activities of any recognised establishment or recognised service of an affiliated health organisation and, for that purpose, give the organisation any necessary directions.

(2) Before making a determination under subsection (1), the Minister is to consult with the affiliated health organisation concerned having regard to the health care philosophy of the organisation.

Does this Bill, or any other existing legislation, allow the minister to issue directions to private Christian and Catholic hospitals to perform abortions?

This Bill does not apply to private Christian and Catholic hospitals because they are not included in the definition of public health organisations in s 7 of the HS Act. The relevant legislation governing the licensing and standards of care for NSW private hospitals is the Private Health Facilities Act 2007 (NSW) or the Private Health Facilities Regulation 2024 (NSW). I do not identify any provision in the Act or Regulations that would empower the Minister to direct a private hospital to provide abortion services.

Does the Bill, or any other legislation, allow the Minister to shut down a private or public Christian or Catholic hospital if they don’t comply with a directive to provide abortions?

I will first address the question as it applies to public Christian or Catholic hospitals (ie, public health organisations). The Bill at s 4A(3) says that ‘the Secretary or a public health organisation must comply with a direction’ made under s 4A(2); however, the Bill does not contain any provisions relating to the consequences of the Secretary or the public health organisation failing to comply with such a direction. The Bill therefore does not give the Minister an express power to ‘close’ an affiliated health organisation, including any Christian hospital listed in schedule 3 column 3 of the HS Act.

Notably, however, affiliated health organisations listed in schedule 3 column 3 of the HS Act may have limited or no liability for certain actions if they are conducted in good faith with respect to the HS Act under s 67 of that Act.

While the Minister has existing powers to close any public hospital under s 31(4) of the HS Act, removing an affiliated health organisation from the list of recognised organisations under the HS Act (with the effect of removing recognition of that hospital or ‘closing it’) appears to be more onerous. Section 62(4) of the HS Act states that the Governor of NSW (not the Minister of Health) cannot make an order to alter or amend the name of a listed affiliated health organisation in column 1 of schedule 3 unless the organisation or institution (or its governing body) consents to it. This suggests that the Minister would not be able to do anything like this either.

I will secondly address the question as it applies to private Christian or Catholic hospitals (ie, private health facilities that are associated with the Christian or Catholic faith). The Abortion Law Reform Amendment (Health Care Access) Bill 2025 does not apply to private health facilities and would therefore not apply to any such facilities associated with the Christian or Catholic faith.

As noted above, the relevant legislation for regulating NSW private hospitals is the Private Health Facilities Act 2007 (NSW) or the Private Health Facilities Regulation 2024 (NSW). I do not identify any provision in this Act or these Regulations that would empower the Minister to ‘shut down’ (eg, revoke or suspend a licence of) a private health facility associated with the Christian or Catholic faith, including in circumstances where that facility did not comply with a direction of the Minister.