Page 4571 - Week 14 - Thursday, 24 November 2005
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its mother. It is not an offence that divides mother and unborn child and it is not an offence that reopens the abortion debate.
The bill is also consistent with the Human Rights Act, which explicitly states that the right to life applies from the time of birth. Because a separate legal personality has not been created through this bill, there is no potential for a conflict of rights between a mother and her foetus. There is no potential for the mother’s rights to privacy and freedom of thought, conscience and religion to be restricted against her will.
Most importantly, the aggravated offence provisions do not affect the current law with respect to medical procedures and terminations. The application of the aggravating factor would only be considered once the general offence is made out. Women seeking lawful terminations of pregnancies and the medical profession have nothing to fear from this bill. The bill does not change the current law in relation to women who terminate their own pregnancies. A woman could not be charged with an aggravated offence if she had performed a self-termination.
The aggravated offence would apply regardless of whether the offender knew the woman was pregnant or whether the offender intended to cause harm to the pregnancy or the child born as a result of the pregnancy. This enables persons who have committed an offence of dangerous driving causing death or grievous bodily harm to be convicted of the aggravated offence whether or not they knew the victim was a pregnant woman. In many of these offences the defendant would not know who their victim was at the time of the offence.
To balance this, the bill also amends the sentencing principles in the Crimes Act to ensure that the court takes into account the harm caused to the pregnancy or to the child born alive and whether the offender knew of the pregnancy and intended to cause harm or was reckless about causing harm to the pregnancy.
The bill also amends the Crimes Act definition of “grievous bodily harm” to ensure that a case for causing grievous bodily harm can be made out if, apart from the loss of or serious harm to the pregnancy, the woman suffers no other harm. This amendment would overcome a situation where a person’s conduct results in loss of a pregnancy or serious harm to a pregnancy and which a court considers does not amount to grievous bodily harm to the mother herself. The bill also inserts a definition of “actual bodily harm” to ensure that a case for inflicting or occasioning actual bodily harm can be made out where there is harm to the pregnancy. Members may recall that a similar amendment was made in New South Wales earlier in the year and dubbed Byron’s law in recognition of the loss of a woman’s pregnancy in a road rage incident.
Another feature of this bill that is directed towards protecting pregnant women is the sentencing provisions that I mentioned earlier. The additional sentencing principles will apply to all offenders who commit offences against pregnant women. A sentencing court will be required to consider whether an offender knew of the pregnancy and intended to cause harm or was reckless about causing harm to the pregnancy in the context of the offence.
This bill is a solution that we can embrace. The bill does not cause unnecessary angst and division within the community. It does not create a new personality in the unborn or
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