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Legislative Assembly for the ACT: 2004 Week 03 Hansard (Wednesday, 10 March 2004) . . Page.. 983 ..

Abortion law in all other jurisdictions provides precautionary legislation that covers the protection of unborn children to a certain degree. Based on legal proceedings in the United States House of Representatives and court proceedings in Arkansas in the United States, both in 1999, the Liberal opposition has proposed this legislation. This proves that there is a need for this type of legislation in the ACT, not only from a national point of view, but also from an international point of view.

I will shortly refer, if I may, to a case that occurred in New South Wales. We are duty bound to protect as many people—born or unborn—as we can in this society and this legislation is a step towards this. The basic purpose of this legislation would make it an offence to injure or kill an unborn child through assaulting or poisoning a woman—with an abortion agent—who is known to be pregnant and who, as a direct result of the offence, loses her child.

I take on board the comments made earlier by Ms Tucker about the complexities of behaviour and co-responsibility in relation to these types of incidents. In addition, the legislation provides for the charging of an assailant who causes the injury or death of an unborn child, although they may have done so whilst unaware that the woman was pregnant. This means that people who initiate a serious assault or offence must accept full responsibility for their actions.

The Crimes Amendment Bill 2002 would also allow the courts to convict those responsible for the death of an unborn child of criminal homicide, or offences ranging from unlawful killing through to manslaughter and murder. The legislation would also give the category of personhood to unborn children in civil cases. This legislation would apply only to wilful acts intended to cause injury or death to the mother or unborn child; it would not apply to situations such as accidents.

I will use the quite famous New South Wales case of the death of Byron Shields to highlight the need for this legislation and a situation where this legislation would be applied. Byron Shields lost his life less than two months from his expected birth following a hit and run on his mother by a man affected by road rage. The driver of the vehicle escaped a conviction for manslaughter because the court ruled that a seven-month-old foetus was not human.

Under law, the magistrate had no option but to make the finding in such definitional terms. The magistrate did, however, lament that the law so constrained her. Going on from that, the magistrate in that case handed out a four-a-half year sentence. Due to the fact that there were no laws to protect the unborn, the magistrate indicated her inability, under law, to bring any action against the defendant specifically for his responsibility for the death of the unborn.

That tragic event further highlights the need for this sort of legislation. Partly as a consequence of that incident, and because of other concerns in law, the New South Wales Attorney-General, Mr Debus, had a look at this. In the New South Wales parliament he said:

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