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Legislative Assembly for the ACT: 2004 Week 03 Hansard (Wednesday, 10 March 2004) . . Page.. 957 ..

The following are relevant, but not determinative, as to whether a person has been born:

the person is breathing;

the person’s organs are functioning of their own accord;

the person has an independent circulation of blood.

Last year, the New South Wales Court of Criminal Appeal upheld that for the offence of assault the fact that a foetus is human tissue connected to and inside the body of the mother is determinative. In 2003 the Court of Criminal Appeal, in R v King, said that the close physical bond between mother and foetus is such that, for the purpose of such offences, the foetus should be regarded as part of the mother.

There is another element of the proposal we are currently discussing that emphasises the dichotomy that it creates between mother and potential child—namely, the exclusion of the mother herself from being an offender. This element of Mr Pratt’s bill had to be introduced because the construction of the proposed offence enables the nascent child to be killed, irrespective of the mother. In other words, the proposed offence creates a new personality that is not the mother, a new personality that is inside the mother but not legally part of the mother. In order to preserve the existing rights of the mother during pregnancy, the bill has to exclude the mother as an offender.

We are all aware of the discussion in New South Wales and Victoria about this issue. I am adamant that the policy aim can be achieved without opening old wounds in the Assembly and the community to fight over the spiritual, philosophical and ideological meaning of “foetus”, and that question which we have pondered through the ages: when does life begin?

The government has announced that next year it will be implementing chapter 5 of the model criminal code, which deals with offences against the person. It was the government’s intention that in the context of the implementation of chapter 5 of the model criminal code, it would introduce a number of offences to be made aggravated by the loss of the mother’s pregnancy, serious harm to the pregnancy, or death or serious harm to the subsequent child.

In terms of the timetable the government has announced for the implementation of the model criminal code, chapter five will be implemented next year. As a result of the interest raised in this subject by the Assembly—indeed, it is a matter of moment in other jurisdictions, and perhaps in the community—I will discuss with my department whether we might advance chapter 5 ahead of the other timetabled introductions of chapters of the model criminal code, to deal with the aggravation of assault offences as a result of the impact of an assault on a woman who is pregnant.

I say it again: in the context of chapter 5 the government will introduce a number of offences to be made aggravated by the loss of the mother’s pregnancy, serious harm to the pregnancy, or death or serious harm to the subsequent child. The offences of manslaughter, dangerous conduct causing death, intentionally causing serious harm, recklessly causing serious harm, negligently causing serious harm, intentionally causing harm and recklessly causing harm will be part of chapter 5 of the model criminal code,

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