Page 339 - Week 02 - Tuesday, 7 March 2006
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .
However, the government is inclusive, is prepared to listen, and takes its consultations very seriously, because it is convinced that that will ultimately produce the best laws. Accordingly, having regard to the legitimate concerns that have been expressed—as I say, most particularly by the scrutiny of bills committee, chaired by the shadow attorney—I foreshadow that I will be making an amendment to the bill which will include a lack of knowledge defence to allow the accused to avoid liability if he or she proves, on the balance of probabilities, that he or she did not know and could not reasonably be expected to know that the woman was pregnant. That is consistent with views expressed by the scrutiny of bills committee, chaired by the shadow attorney.
I will move this amendment because I accept the concerns that the absence of the requirement to prove fault for the aggravating factors is a limitation of the right to a presumption of innocence and I share some of the concerns that have been expressed that the limitation may not fully satisfy the reasonable limits test in section 28 of the Human Rights Act.
To some extent, the additional sentencing criteria in the bill will ameliorate the lack of a requirement to prove fault with respect to the aggravating factors. However, following the consultation which I have referred to, I am of the view that this cannot entirely remedy the problem because the person will be fixed with criminal liability in the first place, even though he or she did not know and could not possibly have known that the woman was pregnant.
Finding a person criminally responsible for an aggravated offence where that person is not aware of, or could not have been aware of, the pregnancy, may overstep the line as far as issues around human rights, criminal law policy and fundamental legal principles are concerned. I believe that including the lack of knowledge defence will ensure greater consistency with all of those principles.
Mr Speaker, the lack of knowledge defence does not weaken at all the objectives of this bill. In fact, the defence is compatible with its objective, which is to afford special protection to pregnant women against intentional, reckless or negligent acts that would cause loss or harm to a woman’s pregnancy. The government recognises that in the high majority of cases the protection that pregnant women will need will be in domestic violence situations. I am confident that in these cases the bill will prove to be extremely effective and it will do so without compromising rights.
The new defence will also avoid the suggestion that somehow the law places less value on women who are not pregnant. Also, if the defendant did not know about the pregnancy, he or she could still be found guilty of a simple offence and the new sentencing provisions in the bill will still have effect to ensure that the sentencing courts take into account, for example, any harm caused to the pregnancy. This is because the sentencing provisions are not limited to sentencing for an aggravated offence. They are relevant to the sentencing for any offence where the victim is a pregnant woman.
Mr Speaker, I would like to respond to some of the matters that have been raised in the debate. In particular, it is necessary to correct Mr Pratt’s suggestion that the right to life provision in the Human Rights Act constrains recognition of the separate identify of the unborn child. Since well before the Human Rights Act—Mr Stefaniak, I am sure, is well
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .