Legislative Assembly for the ACT: 2005 Week 14 Hansard (Thursday, 24 November 2005) . . Page.. 4570 ..
I am aware of the Assembly’s concern that the current law in the ACT does not adequately deal with offences against pregnant women that result in the loss of, or serious harm to, the mother’s pregnancy. The government shares these concerns. I am also aware of the community’s desire that malicious acts towards pregnant women be dealt with appropriately. This desire is not unique to the territory. In recent years there have been some tragic cases in several Australian jurisdictions where acts of violence or the commission of offences have resulted in the loss of a mother’s pregnancy. This has seen several jurisdictions legislate on this matter using a variety of approaches.
In recognition of the importance of the matter to this government, the Assembly and the community, the government has developed aggravated offences for offences committed against pregnant women for immediate inclusion in the Crimes Act. The provisions, however, will be reproduced in chapter 5 when that is developed for introduction next year.
The bill incorporates provisions into the Crimes Act to create aggravated offences for the following offences: manslaughter, intentionally inflicting grievous bodily harm, recklessly inflicting grievous bodily harm, wounding, inflicting actual bodily harm, assault occasioning actual bodily harm, culpable driving of a motor vehicle causing death and culpable driving of a motor vehicle causing grievous bodily harm. The effect of the proposed aggravated offence will be to increase the maximum available penalty for the general offence where there is loss of, or relevant harm to, a woman’s pregnancy. In recognition of the seriousness of the aggravated offence, the penalties have been set approximately 30 per cent higher than the penalties for the general offence.
I ask members of the Assembly to consider and support the bill. I have listened to members’ views and concerns in relation to the issue. Mr Pratt has acknowledged in this Assembly that in cases of violence against pregnant women the court may take into account any injury to the unborn child in determining the sentence to impose. He and the opposition maintain, however, that this is inadequate because the court can only impose a sentence up to the maximum applicable for the offence against the woman. In some cases this may be appropriate. However, in other cases where, for example, the act is particularly malicious or the assault is so severe that it would attract the maximum penalty under normal circumstances, the discretion to apply a more severe penalty is removed and the penalty that is imposed may not accurately reflect the culpability of the offender’s actions. This bill addresses that concern. Where the factor of aggravation is proven, the court is able to consider the imposition of an increased maximum penalty for the offender.
The aggravated offence would apply if one of the general offences was committed against a pregnant woman and the commission of the offence caused either the loss of, or serious harm to, the pregnancy or the death of, or serious harm to, a child born alive as a result of the pregnancy. The bill does not define “pregnancy”. The term “pregnancy” would take on its ordinary meaning and apply at any stage of a pregnancy, beginning at conception and ceasing when a child is born alive.
Because the offence is referenced against the mother, it does not create a dichotomy between the pregnant mother and her foetus by defining an unborn child as distinct from