Ursula Stephens (NSW, Australian Labor Party, Shadow Parliamentary Secretary to the Leader of the Opposition (Social and Community Affairs)) Share this | Hansard source

I too would like to make a contribution to this debate on the Pregnancy Counselling (Truth in Advertising) Bill 2006. I would like to highlight the consequences and the effects of the bill.

The bill was first introduced by Senator Stott Despoja in June 2005. The Senate referred the bill to the Senate Community Affairs Legislation Committee for inquiry and report by August 2006. It is on the public record—and there was extensive media coverage at the time—that the committee received over 6,000 public contributions to the inquiry. Supporters of the bill organised a petition, which was signed by more than 13,000 citizens and tabled in the Senate in June 2006. As a consequence, the bill that we are debating today is the second iteration of the bill. It is sponsored by Senator Carol Brown, Senator Stott Despoja, Senator Troeth and Senator Nettle.

The bill seeks to prohibit misleading or deceptive advertising or notification by pregnancy counselling services that do not charge for the information they provide. It seeks to promote transparency by requiring services to declare which pregnancy options they provide referrals for. The bill prohibits pregnancy counselling services from publishing, distributing, displaying or broadcasting by internet, television, telephone, radio or like service, or by post, any advertising material that is misleading or deceptive as to the services it provides, or any notification of its services that is misleading or deceptive as to the nature of the services it provides.

The bill requires that advertising and notifications by pregnancy counselling services which do not refer for terminations include the statement, ‘This service does not provide referrals for terminations of pregnancy,’ or a like statement. The bill requires that advertising and notifications by pregnancy counselling services which do refer for terminations include the statement, ‘This service provides referrals for terminations of pregnancy,’ or a like statement. Breaching of either of these conditions would result in a penalty and a loss of any Commonwealth financial assistance until the service ceased to engage in what would be regarded as misleading or deceptive conduct. So the bill essentially seeks to make pregnancy counselling services subject to the same laws on misleading advertising as organisations that are engaged in trade or commerce are subject to.

Given the widespread interest in and the broad general support for the bill, it is very interesting to note why we are debating this bill as a matter of general business on a Thursday afternoon. I can only conclude that our Democrat colleagues consider it to be the most crucial issue that the minor parties want to bring before the Senate prior to the winter break—and that is quite extraordinary.

Organisations in receipt of government money to provide counselling services must ensure that they can provide unbiased, expert, independent and professional advice. Surely that goes for all kinds of services. It should apply to pregnancy counselling services just as much as it applies to financial counselling services, drought support counselling services and a range of other counselling services. I do not think there is one person in this chamber who would argue against the need for balanced and independent pregnancy counselling services to ensure that the full range of options is made available to women.

The bill represents a genuine attempt to ensure that women who find themselves pregnant are able to access counselling that helps them make informed decisions about their future—and, of course, every reasonable person would want that. But I doubt very much that the legislation, as drafted, can achieve its intended purpose. At the end of the day, I am convinced that this pursuit of truth in advertising for pregnancy counselling is a nonissue. This opinion is based on my consideration of these matters from the perspective of the Trade Practices Act—which has been quoted by several speakers as the purpose for bringing in this bill. The Senate economics committee considered the act in its deliberations. The second bill reflects some of the considerations of misleading advertising and deceptive conduct under the Trade Practices Act, but, as I am sure the ACCC and ASIC will attest, such conduct can be very difficult to prove.

Prohibition of misleading advertising is contained in section 52 of the Trade Practices Act and it is mirrored in each of the state and territory fair trading acts. It is also mirrored in the Australian Securities and Investments Commission Act in relation to financial services. The prohibition applies to statements about existing facts, predictions about the future, and even silence. Such conduct must convey or contain a misrepresentation and not merely be confusing. Intent is irrelevant in determining whether a contravention has occurred. Prohibition applies to material viewed on a website and to online conduct, including advertising, writing, conducting business and putting information on the internet about business products or services. General corporations are liable under the Trade Practices Act. Licensed service providers are liable under the ASIC Act 1989, and all other organisations are liable under the state fair trading laws. To ensure that there is no misleading or deceptive conduct in pregnancy counselling, the establishment of a regulatory regime would be required—and, without that, this bill is meaningless. Such a regulatory regime, I would argue, would involve significant costs—money which could be better directed to direct counselling services or to strengthen the capacity of the sector more generally.

There is an important issue at stake here. I do not intend to go back to the arguments of the inquiry into the Pregnancy Counselling (Truth in Advertising) Bill 2006, but, in fairness, I would like to make some brief points. The first point is about terminology. Much of the debate around the original bill, which remains just as relevant to this bill, focused on the difference between so-called directive and non-directive counselling. The implication is that ‘non-directive’ refers to counselling with abortion referral as an option, while the more prescriptive term ‘directive counselling’ is defined by the lack of an option of abortion referral. However, this interpretation of non-directive counselling is at best a misrepresentation in its suggestion that best practice counselling inherently involves an ability to refer for an abortion.

In terms of the inquiry into this bill and the submissions received, I would like to quote from the submission by Dr Nicholas Tonti-Filippini, a consultant ethicist. He makes a very important point when he writes:

... the definition of non-directive counselling in the Transparent Advertising and Notification of Pregnancy Counselling Services Bill 2005, and Part 2 of the Bill which contains prohibitions with respect to counselling services that do not refer for termination of pregnancy, would seem to be based on a mistake concerning counselling services in general, and not just pregnancy counselling.

Referral for medical services is a function of medical practitioners and of other health professionals. Referral for specialist medical services is a function of medical practitioners. Counselling services do not normally have a referral function unless medical practitioners undertake them. The effect of the Bill, therefore, would be to limit Government funding of non-directive counselling services to medical practitioners—

it would limit government funding to medical practitioners—

and to prohibit the advertising of all other non-directive pregnancy counselling.

Further, he writes:

Pregnancy counselling services should not be seen as exclusively medical services. There is a need for women to be able to explore non-medical options. There is also a need for women who may want to continue a pregnancy to have access to support services. To medicalise pregnancy counselling would suggest that medical interventions are the only services available.

I think that is a very important point. In fact, I would argue that non-directive counselling is, by definition, unbiased, which is the argument that has been put against this use of the term in the bill. I was very pleased to see that the Commonwealth, when adding pregnancy counselling services to the Medicare regime, argued—and I am quoting from the Department of Health and Ageing website:

It is important that women are able to access non-directive counselling when they are uncertain about a pregnancy and that they are able to do so quickly.

This is a really important issue that needs to be understood in the context of the bill. Services are being defined as being ‘directive’ if they do not provide referral for the termination of pregnancy and ‘non-directive’ if they provide referrals for termination. But, if you have had anything to do with counselling services, you will know that being non-directive in counselling has little to do with whether or not referral is provided, and that it could be argued that providing a referral to a distressed client constitutes pressure to take a certain path. Non-directive counselling actually refers to being able to allow a client to be self-determining in their decision-making process. It is a practice that counsellors use so that the client takes time to think through the issues raised and discussed so that she can make her own choice, having explored what supports are available to her.

One of the arguments that we have heard already this afternoon about directive and non-directive counselling is the issue of the role of counselling versus referral for termination. As I said when I quoted Dr Tonti-Filipini, referral for termination is the role for a medical practitioner who assesses the woman’s medical reasons for termination of pregnancy. The role of the counselling service is to assist a woman to be fully informed of her options, the consequences of those options and the supports available to her if she were to continue with any of these options. Counselling should be about exploring the options, with time given to the client to make her decisions based on her own values, beliefs and supports. Other elective surgeries are dealt with in this way, with transparent, independent counselling provided, so why would we not consider pregnancy counselling in the same way?

It is really quite important for people to understand that the bill defines non-directive counsellors as those who provide referrals for termination. Most commonly, services that provide referral for termination are also termination providers or services with connected business interests. So this counselling, at best, could be seen as pre-abortion counselling, and not independent counselling to explore all options regarding the decision whether or not to continue a pregnancy. There are very strong practice arguments for not referring to medical practitioners who work within termination clinics, and counsellors have an obligation to ensure that their clients receive both independent counselling services and independent medical advice.

Last year in the debates around RU486 we talked about the absolute agreement—more than 90 per cent of people in Australia believe this—that abortion levels in Australia are too high. So it is very important that we ensure that counselling services around pregnancy support include ensuring that people get information that gives them options other than abortion. And yet this is what this bill is trying to address in a difficult and convoluted way. It is an unintended consequence of the way it has been drafted.

The argument in this bill is that, currently, counselling services that do not charge fees are not regulated in any way that might prevent them from engaging in deceptive behaviour or misleading advertising. It is of great concern to me that there are counsellors and counselling service providers who are not governed by legislation and are not bound to operate within the parameters set down by professional bodies. This is an issue that extends far beyond pregnancy counselling, to a range of services that particularly target vulnerable people.

Traditionally, if we talk about misleading and deceptive practices, they generally fall into four categories. Let us think about these categories in the context of the bill that is before us. They are, firstly, pretending to sell something that you do not have while taking money in advance; secondly, supplying goods or services which are of a lower quality than the goods or services paid for, or failing to supply the goods or services sought at all; thirdly, persuading consumers to buy something that they do not really want through oppressive marketing techniques; and, finally, disguising one’s identity in order to perpetrate a fraud.

You can see that, in the debate that we have had so far, those arguments are implicit in the arguments that are being put in support of the bill. I absolutely agree that anyone seeking pregnancy counselling services should not be exposed to such fraudulent and deceptive practices. But we also have an argument that is being played out here that pregnancy counsellors should be value free. We know that that really is a nonsense. The staff of all reputable services are trained to adhere to the Australian Association of Social Workers code of ethics. There is a professional standard about this. But the campaign that has been around this bill has implied a very simplistic position that counsellors should be value free. All counsellors come to their role with a value and a belief system, just as we all do here. There is no such thing as a value-neutral or value-free counselling environment. This is acknowledged by health professionals who offer counselling, such as social workers or psychologists, but they are required, within their supervision, to reflect on their personal value and belief systems to ensure that they do not engage in directive counselling. But the view expressed in this bill of what is seen as directive counselling is very simplistic in terms of the understanding of values in the counselling environment.

We get to this argument about protecting women from misleading and unconscionable conduct—although not in the sense of the expression which I know Senator Brandis would use in respect of the Trade Practices Act—but I still remain very unconvinced that the bill will protect women in the way that proponents suggest. Truth and transparency in advertising is an issue that is much better addressed through professionalising the counselling services, accreditation mechanisms, registration processes and the development of professional standards, guidelines and codes of ethics to support high-quality impartial counselling services. I repeat: I am very unconvinced that the bill will have the effect of addressing this important matter. With regard to the argument that there are no avenues for consumers to make complaints about unprofessional services, I point to the range of state and territory consumer protection and health protection bodies which can serve this purpose.

Let us look a little more at the issue of deceptive advertising. The bill requires pregnancy counselling services to include the statement: ‘This service does’—or does not—’provide referrals for terminations of pregnancy.’ It is certainly entirely reasonable to require all services to declare the services that they provide, but why should any agency or business be required to advertise for services that they do not supply? Whether or not a prospective client determines from the advertising that the services he or she needs are not available from a particular agency is really a matter for the client. An agency that declares the services they offer is being neither deceptive nor misleading. If it declares that it offers alternatives to abortion, what else can that phrase be taken to mean other than exactly what it says? Surely it is a simpler approach that agencies that do make referrals for abortions should advertise that fact and state their own services. As I said, I really believe this truth in advertising argument is a nonissue.

I am sure it would be in the public interest if the Commonwealth published a comprehensive list of pregnancy counselling agencies that include not just the ones mentioned by other speakers but those clinics that currently advertise pregnancy counselling services but provide only termination services with no further counselling—in fact, they are the people who provide no support to a woman who wants to continue her pregnancy, and profit from those who do not. (Time expired)