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Legislative Assembly for the ACT: 2004 Week 03 Hansard (Wednesday, 10 March 2004) . . Page.. 959 ..

I may have misheard Ms Dundas, but I thought that she said earlier in the day that we had taken away the provisions for child destruction. I checked again and saw that we had not. Section 42 of the Crimes Act says:

42 Child destruction

A person who unlawfully and, either intentionally or recklessly, by any act or omission occurring in relation to a childbirth and before the child is born alive—

(a) prevents the child from being born alive; or

(b) contributes to the child’s death;

is guilty of an offence punishable, on conviction, by imprisonment for 15 years.

43 Childbirth—grievous bodily harm

A person who unlawfully and, either intentionally or recklessly, by any act or omission occurring in relation to a childbirth and before the child is born alive, inflicts grievous bodily harm on the child, is guilty of an offence punishable, on conviction, by imprisonment for 10 years.

I hope members realise that what section 43 contains is still in the Crimes Act. These offences relate only to an act or omission occurring in childbirth and seem to be in stark contrast to the Chief Minister’s argument that there is a longstanding legal separation between the situations before and after a child takes breath, or when the child is born alive, because there are still provisions in the Crimes Act that protect particular actions in the process of childbirth.

Surely, if we are to provide—to use the current Crimes Act terminology—a child with protection from acts or omissions in relation to childbirth, should we not extend this protection generally? In the human rights debate, some members claimed that the question of humanity of the foetus had been settled by a debate on the abortion legislation. I notice that the Chief Minister has resiled from that today. His arguments today were a clear departure from the position he took on the human rights debate on that very issue, when the government put forward a clear position that the humanity of the foetus had been settled by the abortion debate previously.

You cannot get from a view about the legality of abortion to a view about the status, or the rights, of a foetus except through the kind of twisted logic I outlined earlier, arguing backwards from the slogan: it cannot be human because, if it were, it would create conflicting human rights. It should be obvious to anyone who has given the subject a moment’s thought that human rights often conflict and that the resolution of these conflicts is complex, requiring a hierarchy of rights and not the simple abolition of the rights of one party—or the abolition of one party.

One might have imagined that this question of the status of the foetus would have been discussed in the course of determining the legality of abortion. However, as I pointed out in the human rights debate, no one in the earlier debate ever referred to the status of the foetus except to argue that life and human rights began at conception. Nor did the passage of the Human Rights Bill determine that question. It limited the application of a

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