Page 402 - Week 02 - Tuesday, 7 March 2006
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page 153 of the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General report on non-fatal offences against the person.
There is specific reference to the specific provision that you seek to introduce, as introduced in Queensland, stating that it is directly inconsistent with laws on abortion. You cannot predict the impact it will have on the law as it relates to abortion, because what you have proposed in providing a separate legal personality for a foetus is that the offences against the person will apply to the foetus; in other words, the law as it stands in relation to murder will apply to a foetus from the date of conception.
You pretend that a law such as that can stand beside a law on abortion. It cannot. That is not my view; that is the view of the pre-eminent active criminal law policy committee in Australia; that is the view, as expressed, of the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General. So you are simply wrong. Your proposal cannot, in the view of the Standing Committee of Attorneys-General Model Criminal Code Officers Committee stand with laws on abortion. That is not my view; it is the view of the experts.
So do not come at me saying that this is a smokescreen by me. This is the view of all of the officers. The report was written in 1998.
MR SPEAKER: Chief Minister, you should come back to the amendment that is before us.
MR STANHOPE: I conclude on this point: I cannot quite remember the critical distribution across the states in 1998, but I do know that in 1998 there was a Liberal government federally. I think the committee was chaired by the commonwealth, with a commonwealth official.
DR FOSKEY (Molonglo) (5.18): I welcome this amendment. My office was concerned by the proposed new clause 48A (4) in the earlier version of this bill which prevented the courts from considering, at the conviction stage, whether or not the defendant knew the woman was pregnant when the offence occurred. I recognise that, through this clause, the government was focusing on making the offender responsible for the consequences of their actions whether or not damage to the pregnancy was intentional.
There were strong arguments for and against this clause. First, we had to consider whether or not it was fair, if the assailant was found guilty of a criminal impact, that he or she may not have realised it could occur at the time of the offence, that is, if the assailant did not know the woman was pregnant and did not know that his or her actions could harm the pregnancy; or, in the case of a car accident, for instance, where the culpable driver causes harm to a foetus or destabilises the pregnancy of a person, he does not intend to harm in any way and does not know even who is the occupant of the car.
Second, we had to consider what was fair for the pregnant woman if her pregnancy was harmed as a result of someone else’s criminal actions, whether they knew she was pregnant or not. The key point when analysing these factors is the intention the assailant had against the pregnancy, for that is where the most serious aspect of this crime lies. To have the intention to harm the pregnancy, the assailant would need to know whether or
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