Page 266 - Week 01 - Thursday, 16 February 2006
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The government’s central argument for providing greater protections to pregnant women through greater deterrence is that the condition of pregnancy—not the foetus, which we on this side of the house believe to be an important living entity—may cause additional penalties to be applied: a 25 per cent per cent loading for manslaughter of a pregnant woman; a 30 per cent loading for assault of a woman if a pregnancy is also terminated.
The government does not say, nor philosophically will it ever say, that it is providing greater protections to the unborn. The government says that it is protecting only the woman, but at a greater penalty rate than for a non-pregnant woman. The woman is at least being protected. I will give the government credit here. It is certainly doing something to increase protections for pregnant women; there is no question about that. The government is doing something to provide some sort of deterrence. But it only looks at the woman as a woman who is afflicted by some material additional condition.
So, if the pregnancy is terminated by an offence, if a foetus dies, tough; that is just one of those material aspects of the woman’s condition. We are protecting only the woman: we do not give a damn, we do not identify, we do not care for the unborn in the Chief Minister’s world of legal protections. Fundamentally, therefore, the government’s legislation is much weaker and in our view provides for much weaker deterrents against assault on pregnant women. It is at least better than nothing, but it is still fundamentally flawed.
Because the government’s law will not enshrine the living entity as something worth protecting and protecting with strong laws, it is weak law. The government is straddling barbed wire. The government knew that it had to do something, but it is frightened about the impact of lobbies and what they have to say. Because the government wants to avoid getting into a debate about when does life begin, it has produced weak laws embedded in its human rights legislation that permits life to be recognised only at birth, that are open to legal debate about how manslaughter can apply as a result of injuries sustained prior to being declared an entity before birth. The government continually says that it wants to avoid the debate about backdoor abortion, so it has come up with this piece of legislation which is not as powerful and does not really afford protection for the unborn child.
If the Stanhope government had taken the lead of states such as Queensland, it might have introduced laws which would be much more effective and give much more recognition to the status of the unborn child. Section 313 of the Queensland Criminal Code Act 1899, which relates to killing an unborn child, states:
(1) Any person who, when a female is about to be delivered of a child, prevents the child from being born alive by any act or omission of such a nature that, if the child had been born alive and had then died, the person would be deemed to have unlawfully killed the child, is guilty of a crime, and is liable to imprisonment for life.
(2) Any person who unlawfully assaults a female pregnant with a child and destroys the life of, or does grievous bodily harm to, or transmits a serious disease to, the child before its birth, commits a crime.
Maximum penalty—imprisonment for life.
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