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Legislative Assembly for the ACT: 2004 Week 03 Hansard (Wednesday, 10 March 2004) . . Page.. 956 ..

community, and I hasten to suggest that there never will be. Mr Pratt’s bill gives the impression that it is simply about assaults on pregnant women, but it is far more than that. The bill establishes a division between mother and foetus in the context of the Crimes Act 1900.

The effect of the bill will be to create a new forum to revisit the abortion debate and reproduction debates in general. The bill objectively forces us to ask the question: when does life begin? In motivating the bill to the Assembly, Mr Pratt argued that the bill is not intended to revisit the abortion debate and that its purpose is instead to eliminate an anomaly in the act in that it does not recognise the unborn child as a person against whom an offence can be committed.

Mr Pratt acknowledged that in cases of violence against pregnant women the court can take into account any injury to the unborn child in determining the sentence to impose. He maintains, however, that this is inadequate because the court can only apply a sentence up to the maximum applicable for the offence against the woman, which in some cases would not accurately reflect the culpability of the offender’s actions.

The danger in the bill is the construction of a new legal personality—the unborn child, or whatever label we give it. As I said earlier, a major fault line in the spiritual, philosophical and ideological conflict over the rights of women during pregnancy is the issue of whether a nascent child has a separate personality. The notion of separate personality is debated in all aspects of its meaning—legal, spiritual, social, political and economic. The threshold question, as I said, is: when does life begin?

In the normal context of community debate in Australia most people would agree to disagree and respect each other’s views when answering this question. In the context of reproduction debates—on IVF, surrogacy, abortion or same-sex partners—the answer to this question provides a direct challenge to those spiritual, philosophical and ideological life choices, which many of us concentrate on, think about and make.

In his presentation speech Mr Pratt said that he was not revisiting the abortion debate. He said that his bill does not change the definition of “life” currently used in the Crimes Act. However, the bill states explicitly that an offence is committed if the offender “destroys the life…of the unborn child”. Those are the words used in Mr Pratt’s bill. He says on the one hand that it is not meant to change the definition of life; he then goes on to state explicitly that the offence is the destruction of the life of the unborn child. There is no construction possible other than it is his intention that the unborn child is inherently a separate life. The explanatory statement explains this provision in the same terms.

In his speech Mr Pratt says, “It is necessary that we send a message that we will provide protection for pregnant women and the unborn child.” The bill therefore creates a dichotomy between the woman and her nascent child, which goes to the core of the abortion debate and all of the other reproductive debates.

I support the definition of birth that has been recommended by the Model Criminal Code Officers Committee to all jurisdictions in Australia. This is that definition:

…a person’s birth occurs at the time the person is fully removed from the mother’s body and has an independent existence from the mother.

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